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September 10, 2009

Judges complaining to USSC about federal sentencing guidelines for child porn possession

This new article from the National Law Journal, which is headlined "Sentences for Possession of Child Porn May Be Too High, Judges Say," reports on some testimony from the latest US Sentencing Commission regional hearing. Here are highlights:

Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said. "This is an area that requires the commission's close consideration and possible corrective action," Rosen told the panel, adding, "I know it's an awkward area for all of us."

In response, Commissioner Beryl Howell said that the issue "is on our priority list for the coming year." The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years....

"I'm of the view that in many instances the sentences are simply too long," Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession....

7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence. "One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

U.S. Attorney Patrick Fitzgerald, who oversees the Northern District of Illinois, will testify tomorrow that there "seems to be a striking dissonance" between judges and prosecutors in sentencing for child pornography and exploitation cases, according to his prepared remarks. "Without taking an advocate's view on why it is so, it is plain as day there is a deep disconnect," he said in the remarks, which were distributed early by the sentencing panel. "I respectfully suggest that this is an area of sentencing that warrants further study and further education of all involved."

The Booker decision has "aggravated the situation concerning child pornography," Fitzgerald said in his prepared remarks.  While mandatory minimum sentences in that area "are certainly strict," prosecutors may be reluctant to seek lower sentences when they expect, based on past experience, that judges will reduce whatever sentences they recommend, he said.

September 10, 2009 at 08:04 AM | Permalink

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Comments

Fitzgerald's comments are really striking.

"[T]here 'seems to be a striking dissonance' between judges and prosecutors in sentencing for child pornography and exploitation cases . . . 'Without taking an advocate's view on why it is so, it is plain as day there is a deep disconnect. I respectfully suggest that this is an area of sentencing that warrants further study and further education of all involved.'"

Reality based, to be sure, but very opaque as well. Honestly, more civil than we've grown to respect also (probably, in part, because prosecutors need to curry favor from judges and have a professional duty not to hold the courts in contempt). But, the question one is dying to ask, sincerley, is:

"Tell us how you really feel Mr. Fitzgerald?"

Clearly he is saying that prosecutors think that high child porn sentences are appropriate, while judges disagree and think lighter sentences are approriate. But, what is his own view on whose right? Does he side with the prosecutors? Is he fishing for a judgeship? What does he believe that study and education would provide?

Is he suggesting that prosecutors believe that child porn users are sexual predators just about to bloom, while judges with more sanitized exposures to these defendants don't realize this?

Posted by: ohwilleke | Sep 10, 2009 7:59:14 PM

As a federal prosecutor who sees a number of these cases on a regular basis and consult with peers nationwide who also do these cases regularly, it seems that the far majority (no exaggeration) of judges who sentence on these matters refuse to look at the pictures. While I don't blame anyone who does not want to look at these pictures, it's amazing any judge has an opinion such as this when they don't see the photographs. These are not naked babies in the bathtub. They are photos and video of babies being raped. Four years old with duck tape around the eyes while adult gentitalia is forced upon the child. They are in essence "crime scene" photos.

I did these cases when there would be something like 15 total images. Now with "technology" we have defendants with 500K images, 500 plus videos, etc. etc.

Anyone that has done any real research in this area knows the recidivism and the later-discovered conduct.

Tell the parents of the children in these photos that the sentences are too long.

Posted by: Butkus | Sep 10, 2009 10:14:31 PM

Butkus. But that's just the corner the prosecution has painted themselves into. In essence what they want is unqualified trust and our system is not based upon that. How can anyone judge if they really are as bad as the victim and the prosecutor say when no one can see them because to do so is to re-victimize the child. For a person to even say they has seen such a picture outside a courtroom is to admit to violating the law. Why as a judge would I want to revictimize the child by looking at the pics again.

It's really that simple. If you want me to trust you you are going to have to show me the goods. And if you don't show we the goods I'm not going to trust you. So take you pick. If you don't want to people to think those sentences are too long, put the stuff up for public view. If you won't do that, please shut up. Because I don't give a rats ass about how many pics you have seen. I don't believe you. In an adversarial system I can't believe you.

Posted by: Daniel | Sep 11, 2009 12:50:30 PM

Daniel, that's the point. At sentencing, prosecutors WANT the judges to see the photos/videos, yet they often refuse to look at them. At trial, the jurors often do see the photos/videos. As for the general public, graphic descriptions should be enough, especially when nobody, including defense counsel who HAS seen them, objects to the descriptions. At some point, your failure to "trust" that the descriptions are accurate is your refusal to know the truth.

Posted by: Domino | Sep 14, 2009 8:59:17 PM

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