« Are federal prosecutors acting worse or are judges just starting to notice? | Main | Sentencing chapter of balloon boy hoax »

December 23, 2009

"Judges seek flexibility in child porn cases"

The title of this post is the headline of this new article in USA Today discussing a facet of post-Booker federal sentencing well-known to regular readers of this blog.  Here are excerpts:

People convicted of possessing child pornography are getting support from an unexpected source: federal judges.  In hearings across the country, defense attorneys and federal judges are asking the U.S. Sentencing Commission to allow judges greater flexibility to give lighter sentences for possession of child pornography when no other crime is involved....

Ernie Allen, president of the National Center for Missing & Exploited Children, says judges already give sentences that are lighter than the guidelines.  He says they sometimes minimize the crimes by not examining the pornography involved and are too often swayed by defendants who appear before them and do not match society's stereotypes of people who look at child porn.

"Doctors, lawyers, business executives, schoolteachers, police officers — they come out of mainstream America," Allen says.  "So in a lot of situations, judges look at them and say, 'They're not dangerous,' or they minimize it and say, 'This is just kiddie porn.' "

U.S. District Judge William Sessions, chairman of the commission and chief judge of the district of Vermont, says judges have been nearly unanimous that the guidelines and the mandatory minimums restrict their ability to sentence convicts based on the specifics of each case and defendant.  He says police and prosecutors want to maintain them intact to serve as deterrents to crime, and to use possible sentence reductions as incentives to win defendants' cooperation in investigations.

A few related recent child porn federal sentencing posts:

December 23, 2009 at 09:22 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20120a775a4f7970b

Listed below are links to weblogs that reference "Judges seek flexibility in child porn cases":

Comments

Chairman Sessions' notion that the Guidelines excessively restrain judges is absurd. They barely restrain judges at all. After Gall and Kimbrough, there is a shell of restraint left, but nothing in the shell.

Although I am no fan of identity politics or identity law, one cannot help noticing that these outraged cries about porn sentencing disproportionately favor white defendants.

Posted by: Bill Otis | Dec 23, 2009 12:18:49 PM

Mr. Otis I must respectfully disagree that the guidelines provide no restraint on judges. Many judges are still suffering from "guidelinitis" as described in dissent by Judge Merrit in U.S. v. Sexton, 512 F.3d 326. In compelling cases some of those judges are willing to vary by say 10% from a range given the right circumstances.

The judges that are less restrained still calculate the range and know what it is. Even in cases where compelling circumstances exist, the further away from the range that a proposed sentence gets, the harder the going gets.

This is a crucial point in the evolution of the guidelines. The judges that are varying are vocal, as this post demonstrates, and they are willing to share the reasons they think the guidelines are unwise in particular cases. If the Sentencing Commission responds to this and makes adjustments according to the feedback it is getting from the bench, the judges that are varying now, having been heard and their concerns addressed, will be far more likely to sentence in accoradance with the Commission's advice. If the Commission ignores the bench and does nothing to address these concerns, these judges will likely give even less weight to the guidelines.

Listening to the bench will serve to promote the goal of reducing sentencing disparities. Ignoring the bench will result in two classes of sentences, those that are imposed by the old school guideline centric judges and those that are imposed by judges who believe the Commission has not performed its "characteristic institutional role."
I hope that the Commission will listen to the bench.

This is not just my opinion on how the process should go forward. In Chapter 1 Part A(2) the Commission refers to the continuing evolution of the guidelines and the importance of judicial feedback. Hopefully, that language is not just an empty shell.


Posted by: KRG def attny | Dec 23, 2009 1:17:59 PM

Sharp and informative post KRG.

Posted by: Mark # 1 | Dec 23, 2009 2:07:49 PM

KRG --

"I must respectfully disagree that the guidelines provide no restraint on judges. Many judges are still suffering from "guidelinitis" as described in dissent by Judge Merrit in U.S. v. Sexton, 512 F.3d 326. In compelling cases some of those judges are willing to vary by say 10% from a range given the right circumstances."

A dissent in a court of appeals opinion does not displace a Supreme Court majority. The Court has made it pelucidly clear that the guidelines are "advisory only" (the Court's exact phrase). And it's not just the language. The gigantic departures approved in Gall and Kimbrough leave no doubt, to anyone who actually reads those cases, that the prior, mandatory nature of the Guidelines is over.

Numerous of Doug's entries on this blog attest to the extent to which district judges feel free to tell the Guidelines to take a walk. Mostly the departures are down; some, as in Madoff, are up. But that judges are free to depart from the guidelines liberally (indeed, with something close to, although not quite, impunity) can no longer be seriously questioned.

If most sentences are still within the Guidelines (about 60% still are), it's not because judges are in a straightjacket. It's because the Guidelines were put together based on heartland sentencing practices to begin with.

Posted by: Bill Otis | Dec 23, 2009 3:17:34 PM


With a few exceptions,(child pornography guidelines being one), the continued credibility of the sentencing guidelines rests precisely on the fact that they were based on past sentencing practices. Certainly, the feeble standard of appellate review is not enough to persuade powerful federal judges to "toe the line".

Posted by: mjs | Dec 23, 2009 4:27:59 PM

Self interest groups and people like Ernie Allen get heard too often and are often full of BS. Sending someone to prison for one day for viewing, downloading, or possessing "porn" is gross, expensive, and counter productive. The last point being that the inmates sit in prison for years and stew about their offense and the nature of their perversion. They come out more unglued than when they went in. Many of the released convicts live under bridges in places like Florida which will not permit them to live anywhere in the state but yet refuse permission for them to leave the state while on parole. I am fairly certain that "treatment" seldom if ever cures these perverts of their ills. I doubt that such perversions are illnesses at all. I know that prison does not cure them of their perversions. When they get out they will look at child porn again and the only difference will be that they are less careless with allowing others to discover their stashes.

A case in Florida, reported in this blog about a year ago, shows the absurdity of these laws. Two heterosexual kids old enough to have consensual sex did so and did so legally. When they filmed the sex act it became a child porn crime because they were not of age to photograph the sex act they performed quite legally. Kids "text" each other showing their legal sexual exploits and run afoul of the law every day. Guys like Ernie made these children all criminals.

Sentencing "reform" resulted in the creation of the Sentencing Commission and the Guidelines. Parity has resulted of thousands of incarcerations where the defendants deserved a break. A judge's job is to figure out who deserves one and who does not. I was a lawyer during all those evil days of disparity. A federal judge in St. Louis gave every single draft offender who came before him five years in prison. That was unjust--but not as unjust as sending every single child porn possessor in the whole country to federal prison for even more time. I will take the disparity dished out by some evil bastards over the parity afforded the country by the Guidelines.

The sanctimony which one hears on the child porn subject is ridiculous. The church goers among the readers of this blog should look around the sanctuary on Sunday and realize that a good portion of those phonies are perverts. The Catholic priesthood is rank with perverts. We do not see many of those guys going to prison and they are committing a lot worse crimes than looking at pictures.

Posted by: mpb | Dec 24, 2009 3:39:59 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB