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September 11, 2009

Split Sixth Circuit affirms one-day prison sentence for downloading child porn

Providing another example of the disputes and disparities engendered by sentencing in federal child porn possession cases, a split panel of the Sixth Circuit today affirms as reasonable a one-day prison sentence in US v. Stall, No. 08-4064 (6th Cir. Sept. 11, 2009) (available here).  Here is the start of the majority opinion authored by Judge Boggs:

Adam Stall pleaded guilty to two counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). After observing that Stall had no criminal history and properly determining that the Sentencing Guidelines advised a range of 57-71 months of imprisonment, the district court sentenced Stall to only one day of incarceration and a ten-year period of supervised release.1 In this appeal, the United States contends this “non-custodial” sentence was procedurally and substantively unreasonable. Because the government at sentencing put forward almost no evidence for why a sentence within the Guidelines was warranted and did not raise the same cogent arguments it presents only on appeal, we affirm, holding that the district court’s explanation for the extent of its downward variance was sufficient in light of the record made before it.

Here is the entire dissent authored by Judge Rogers:

The one-day sentence in this case does not, with reasonable sufficiency, avoid disparity in sentencing or provide for general deterrence. I would therefore vacate the sentence as substantively unreasonable, and remand.

September 11, 2009 at 10:25 AM | Permalink

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Comments

As a substantive matter I tend to agree with Rogers. But the truth is that the majority got the result right. The fundamental fact of the matter is that the government just got out-lawyered by a good attorney. I find it interesting to note that even the majority concedes that if this had been a poor defendant with a public defender we would not likely having this sentence or appeal.

As a matter of policy, I agree with Rogers. You should not get a one day sentence for this type of crime. But as a matter of facts as proven by the state; this is the right result. The government simply blew it.

Posted by: Daniel | Sep 11, 2009 12:27:08 PM

To the contrary, the sentence is too severe. As the Court noted, the total time of incarceration plus supervised release is longer than the PSR recomended. Considered in toto, the deprivation of liberty and collateral consequences of the offense are substantial. The conditions of his release go well beyond what is actually justified by the defendant’s past conduct. I doubt that anyone who was subjected to them would consider them lenient.

Among other things, there is a total ban on computer use. While common in child porn convictions, such restrictions are increasingly outmoded, given the far greater number of non-infringing uses of a computer, and the increasing difficulty of engaging in a productive career without access to one. We will soon reach a point where mere possession of a cell phone would put the defendant in technical violation. These outright computer bans need to be replaced with more thoughtful restrictions that actually go to the substance of the defendant’s conduct.

Posted by: Marc Shepherd | Sep 11, 2009 12:52:47 PM

The Sentencing Guildlines were enacted to correct the disparity of indeterminate sentencing. Now with Booker, et al. we have disparate sentencing again. Is there anyway out of this back and forth between mandatory sentences for all on the one hand and discretionary sentences on the other?

Posted by: flop | Sep 11, 2009 12:54:11 PM

Flop. That's a great question. But the answer is one that people don't want to hear. We need to go back to a time when most judges weren't lawyers, at least not in the way we see a lawyer today. The will of the community is a surprisingly consistent will. But judges don't reflect the will of the community, they reflect the imperatives of their chosen profession. The professionalization of the law has done more harm to consistency within the law than any other source. The other big problem is the imperative of modern industrial democracies that favor systematization (think NIST) over freedom.

There is always going to be tension between individual needs and society, between the need for the freedom to advance and consistency of application. But that tension used to be worked out in a cauldron called democracy. Now it's trying to be worked out in the courtroom and in law schools. It's been an unmitigated failure. My own personal opinion is that the only solution to this cultural morbidity is to admit that the experiment has failed, let the USA implode, and start all over again. But I don't honestly expect that viewpoint to find much traction with so many vested interest wanting to preseve the staus quo.

Posted by: Daniel | Sep 11, 2009 1:18:56 PM

"I find it interesting to note that even the majority concedes that if this had been a poor defendant with a public defender we would not likely having this sentence or appeal."

Where in the opinion is that said?

Posted by: Jay | Sep 11, 2009 1:46:21 PM

This misty-eyed nostalgia for the pre-Booker days is misplaced. Mandatory guidelines produced only the illusion of fair sentences. Because there were many factors that the guidelines either failed to consider or got wrong, these sentences were no more fair than the completely unguided sentencing regime that they replaced.

In crafting the Booker remedial opinion, the Supreme Court was limited, because it couldn’t just repeal the SRA, but it clearly had to do something. Oddly enough, I think the Court got it right. The Guidelines are a brake against unfettered discretion (most sentences still conform to them), but judges can vary when presented with a case where the Guideline is clearly ridiculous. There is no such thing as perfection in sentencing, but this isn’t a bad refinement. Congress could change it, but so far seems content to leave the Booker remedy in place.

Posted by: Marc Shepherd | Sep 11, 2009 1:56:47 PM

Jay. "There are reasons to question the district court’s judgment. The district court could have more readily identified with the defendant because of his privileged background and the fact he attended college, and this comfort with the defendant could have informed its decision not to sentence him to a lengthy term of imprisonment, as advised by the Guidelines and recommended by the PSR. The court’s suggestion that Stall is more amenable to treatment outside of prison because prison would make him depressed and withdrawn seems unlikely to be a winning argument for a defendant from different circumstances."

Now, as I read that paragraph "different circumstances" is being contrasted with "privileged background". So there seems to be a direct suggestion that a poor defendant would have been treated differently by the district court. Presumably the district court thinks poor people don't get depressed and withdrawn in prison because their ordinary lives are so depressing anyway.

Maybe I'm reading it wrong but that's the way I read it at the time and it seems to me the correct reading now.

Posted by: Daniel | Sep 11, 2009 3:59:28 PM

Doug:

Nowhere in Judge Boggs opinion is there a slap at public defenders generally or federal defenders specifically that your post states. Having read a fair number of Judge Boggs' opinions over the years and having personally witnessed the unusual degree of professional courtesy afforded a dear friend, I would have been shocked to see such a remark in an otherwise civil opinion.

Posted by: karl | Sep 11, 2009 5:56:09 PM

Karl.

I think you are responding to me. I quite agree that his opinion is not an obvious "slap" towards public defenders. But I think the implications of his remarks are certainly disturbing to them. I don't think the paragraph I reference suggests that the public defenders are not doing a good job, it suggests that the district court might harbor some bias towards poor defendants (who are more likely to represented by public defenders).

Posted by: Daniel | Sep 11, 2009 7:23:00 PM

Daniel, in no way does the opinion say or hint or imply that it public defenders would have obtained a less beneficial result. Your choice of words is very poor and misleading.

Posted by: DEJ | Sep 11, 2009 7:49:30 PM

The Office of the Federal Public Defender for the Southern District of Ohio is staffed by some of the most talented criminal defense attorneys in this State. They win plenty of trials, they secure plenty of favorable sentences, and they win plenty of appeals in the Sixth Circuit. To suggest that a criminal defendant would be disadvantaged if he or she were represented by them is an indefensible proposition.

Posted by: JC | Sep 11, 2009 10:18:48 PM

DEJ & JC. I never said what you people are claiming I said and I don't believe the opinion says that either. I have clarified my remarks twice now on that point. I think the opinion suggests that there is possible bias on the part of the district judge, not on the part of the public defender. That's why the public defender will lose. So I do suggest that based upon the reading of the opinion that indeed a criminal defendant would be disadvantaged by the public defender's representation. But not because of anything they do or say but because of judicial bias on the bench towards the poor.

I think that was the obvious implication of my original post. But if it wasn't I have now clarified it twice. That all I can do.

Posted by: Daniel | Sep 11, 2009 11:01:29 PM

Another example of why people do not have faith in our justice system.

Posted by: Melesha | Sep 12, 2009 2:21:02 PM

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