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January 8, 2010

A new thoughtful child porn downloading opinion assailing images guideline enhancement

I just came across a recent district court opinion discussing the federal guidelines for child porn that has an especially astute discussion of one significant aspect of the enhancements regularly applied in these sorts of cases.  The opinion is authored by Chief Judge Joseph Goodwin in US v. Raby, 2:05-cr-3 (S.D. W. Va. Dec. 30, 2009) (available here), and the full opinion is a must-read. But this passage in particular adds nuance and insight to criticism of how the federal sentencing guidelines operate in child porn possession cases:

Basic economics justifies criminalizing the consumption of child pornography.  Unable to eliminate the supply of these horrible images, we prosecute consumers to lower demand.  Although each individual offender’s child-pornography collection may have little or no effect on the worldwide market, viewed in the aggregate, the impact is significant.

But this market-based justification does not support the number-of-images enhancement in section 2G2.2(b)(7).  The worldwide market for child pornography is so vast that the the relative market impact of an having even 592 additional images is miniscule.  Yet, in this case, the five-level number-of-images enhancement alone raised Mr. Raby’s advisory Guidelines sentence from 121 to151 months in prison to 210 to 262 months, effectively doubling his sentence.  The de minimis market effect of a few hundred images simply does not justify sentencing a man to additional decade in prison.  While the size of Mr. Raby’s child-pornography collection is certainly a part of the nature and circumstances of his offense, adhering to this rigid calculus in this case would be unjust and would ignore the mandate of § 3553(a).

Some related recent federal child porn prosecution and sentencing posts:

January 8, 2010 at 11:12 AM | Permalink

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Comments

Fine and good, but the image table was a DIRECTIVE from CONGRESS to the Commission. I understand that the Supreme Court has suggested that specific directives from the legislature have "less weight" than the USSC doing it's own deliberative thang, but it just doesn't make any sense Constitutionally, and leaves the door open that any directive from Congress to any agency, commission, or other rule making body that is then incorporated into regulation is basically ignorable.

So what sentencing avenue is left to Congress? Mandatory minimums.

Posted by: Ferris Bueller | Jan 8, 2010 11:31:26 AM

funny how "thoughtful" always equals "lesser sentence" . . . .

Posted by: federalist | Jan 8, 2010 12:17:48 PM

This is largely because, federalist, one does not typically need to be especially thoughtful in order to calculate and comply with the federal sentencing guidelines. There can and have been some thoughtful opinions in which above-guideline sentences have been imposed --- such as a Grubbs case discussed in Ruby --- but the reality of within-guideline sentences being viewed as nearly per se reasonable has resulted in district judges needing only to be expressly thoughtful when seeking to explain and justify lower sentences.

I encourage you, federalist, to send me exampes of thoughtful opinions in support of more severe sentences. The Cavera case is one example that comes to mind, and I would readily call all the opinions in that case thoughtful (especially the separate opinion by your favor new Justice who was then on the Second Circuit).

That all said, you are entirely right that I have a bias against long terms of incarceration that do not obviously appear necessary to protect public safety. But I hardly think I hide this bias.

Posted by: Doug B. | Jan 8, 2010 12:40:37 PM

Doug, in case you haven't noticed, I don't read too many federal guideline sentencing cases. It's not a huge interest of mine. So I am going to decline the invitation.

In any event, kudos to you for forthrightly acknowledging your bias.

Posted by: federalist | Jan 8, 2010 12:59:47 PM

Professor: What a straw man. Your article and Fed's response were about written sentencing opinions, and you change the subject to calculation of guidelines.

By this same standard a district judge who varies outside the range need not be any more "thoughtful" as long as he or she parrots one of the 3553(a) factors on the record, which, as you well know, are as broad and vague as the anything in the law. Mechanical application to get a result no different than mechanical application of the guidelines. The only difference is the range of possibilities - not the "thoughtfulness" of application.

However, if we are talking about legal opinions, rather than changing the subject, guideline sentencing opinions can and have been just as "thoughtful" as those that support variance - and actually make up a much larger and much more significant impact on more federal offenders than any non-binding variance case law from obscure district courts.

There are about a dozen 5th Circuit opinions on the application of the COV enhancement in reentry cases that mean much more to, literally, thousands of defendants than a district court opinion from Hooterville.

Posted by: Ferris Bueller | Jan 8, 2010 1:02:44 PM


While a strong proponent of the federal sentencing guidelines, I must say that the guidelines for child porn possession have spiraled out of control due to various congressional directives. As presently constituted, Section 2G of the guidelines presents fertile ground for individualized justice and yes... thoughtful decisions.

Posted by: mjs | Jan 8, 2010 1:26:16 PM

Ferris:

Doug does not give the “thoughtful” label to every single opinion in which a below-guidelines sentence is given. It is true, however, that an opinion merely hewing to the guidelines is a lot less likely to warrant that label.

While I cannot provide an exact cite, I believe that Doug has given favorable shout-outs to opinions announcing or affirming within-guideline sentences, if they contained significant original thought.

Posted by: Marc Shepherd | Jan 8, 2010 1:53:46 PM

FB: "it just doesn't make any sense Constitutionally, and leaves the door open that any directive from Congress to any agency, commission, or other rule making body that is then incorporated into regulation is basically ignorable."

Congress told the Commission to do something in formulating the guidelines. It did. Congress cannot constitutionally make the Commission's guidelines, as they currently exist, mandatory. So they aren't mandatory. But consideration of the guidelines is mandatory.

(1) What's being "ignored" here? Seems like everyone is doing what they are required to do.

(2) How does this "leave the door open" to the free-for-all you hypothesize?

FB: "So what sentencing avenue is left to Congress? Mandatory minimums."

Or, Apprendi-proof the guidelines.

FB: "There are about a dozen 5th Circuit opinions on the application of the COV enhancement in reentry cases that mean much more to, literally, thousands of defendants than a district court opinion from Hooterville."

Not sure how many people would embrace your implicit opinion that the 5th's COV jurisprudence is "thoughtful." The fact that five years (or more) additional time depends on the kind of number-of-angels-dancing analysis required under COV law casts serious doubt on both the deference granted to guidelines sentences and on your earlier premise that guidelines tied to congressional actions (in this case, the amendment of the stat max) yields more trustworthy guidelines, or guidelines worthy of some kind of extra-deference in the sentencing court.

Posted by: Texas Lawyer | Jan 8, 2010 1:57:37 PM

I am not entirely sure of what you are grumpy about, Ferris Bueller, but I agree that there can and have been lots of thoughtful efforts by circuit judges to make sense of hard-to-decipher aspects of the guidelines. That said, lots of these rulings are not especially thoughtful in light of the purposes of sentencing that Congress placed in 3553(a). Those purposes are "broad and vague," but (in my view) less broad and less vague than, say, the Fourth Amendment's prohibition of "unreasonable" searches and seizures or Section 1 of the Sherman Antitrust Act.

In any event, you are right that circuit sentencing rulings have more impact and consequence than district court rulings, but it is not clear why the adjective "thoughtful" should be read to mean "important" in this context. Moreover, it seems that having a robust debate over my (excessive) use of the adjective thoughtful is almost as productive as debating whether your version of Twist and Shout was the best ever recorded in a movie.

Posted by: Doug B. | Jan 8, 2010 2:01:02 PM

Judge Goodwin is a good, dare I say it, thoughtful judge, despite the unfortunate historical coincidence of his having hailed from "hooterville" as FB so eloquently puts it. I have practiced in front of him and have interacted with him in academic settings, and he is truly top-notch.

Posted by: A.Nony.Mous | Jan 8, 2010 2:11:34 PM

Tex: You miss the point. The Kimbrough/Gall line suggests that directive-based GL's are entitled LESS deference than other GL's because the Commission hasn't done it's Commission Magic when it's told what to do by the legislature. That is illogical and a swipe at Congress' powers.

Second, what's the more likely scenario, Congress legislatively enacts some Rump Guidelines or Congress does what it does best, get headlines with "get tough" mandatories for the next crime de jour (I'm betting on commodity fraud)?

Finally, as the Prof points out, it depends on what you mean by "thoughtful" and, as Federalist first pointed out here, "thoughtful" seems to mean "agrees with me" to some people in some contexts. I suggest that "thoughtful" means well-reasoned and thorough, and while you may not like the results the 5th Circuit comes to (and, as it happens, neither do I often), there is no doubt that many of their COV cases are very well reasoned and cover the boardwalk from obscure legislative history of other states' statutes to careful review of the original charging documents of the enhancing offense. Disagreeing with the result doesn't mean the court is any less "thoughtful" in the application.

Also, I didn't say I thought the impact of 5th Cir. COV cases was good or bad - I just pointed out that they have a "more significant impact on more federal offenders than any non-binding variance case law from obscure district courts," which they certainly are.

And, BTW, the reentry guidelines actually understate the penalties if you go by the stat max in Title 8. There is literally no way to get the 20 year stat max with a COV enhancement under the guidelines even in the top criminal history category. We can debate whether the stat max makes sense, and whether both COV and agg. felony definitions are too inclusive, but you can't blame the stat max for the guideline because they don't correlate.

Prof: I ain't mad atcha, I just think it was a little sly to bother to respond to Fed's innocuous comment with a straw man and I felt you needed to be playfully reminded that some of us can read (a little).

Also, I don't disagree for a second that Possum Joe's opinion was "thoughtful", and didn't say it wasn't, but I'm sure glad you agree with me that the 5th Circuit's idears about COV are more impactful to more people than a district court's noble struggle with child porn panic legislation.

And my version of "Twist and Shout" is definitive.

Posted by: Ferris Bueller | Jan 8, 2010 6:05:50 PM

Prof: I was just thinking, to avoid this problem in the future using the term "thoughtful" too often, maybe change it up a bit - might I suggest "a totally scrumptious holding", "simply divine reasoning", or "an opinion (not) to die for" (only for capital cases).

Posted by: Ferris Bueller | Jan 8, 2010 9:01:52 PM

I don't think this opinion is thoughtful at all.

"Basic economics justifies criminalizing the consumption of child pornography. Unable to eliminate the supply of these horrible images, we prosecute consumers to lower demand. Although each individual offender’s child-pornography collection may have little or no effect on the worldwide market, viewed in the aggregate, the impact is significant."

I don't think a thoughtful person could have written those words. It is a deliberate and knowing lie.

Posted by: Daniel | Jan 9, 2010 12:33:57 AM

Daniel: How so?

Posted by: flop | Jan 9, 2010 8:56:06 AM

Because there is no scientific or research evidence that any of that is true. Show me the *economic* studies that indicate that the prosecution of child porn downloaders lowers demand. I would pay money to see those studies because I like magic tricks; they don't exist. In fact, the few non-economic papers that I have seen on this topic indicate that downloading of child porn continues to rise at a rapid pace. This also puts the lie to his claim that in the aggregate the impact is significant. Again, where are the studies that show that to be true. Everything I have read on this topic shows that people who are prosecuted for child porn are but a minor dribble in the bucket.

Assuming for the sake of argument that the judge is right, as a policy matter we would have to conclude that the prosecution of child porn down loaders is not only a massive failure but violates, as the judge would have it, "basic economics". And there is a reason for that. I know of no responsible mental health professional, sociologist, or economist who believes that most child porn is either created or viewed for economic reasons. The only people who seem to believe that economics has anything to do with child porn are judges and lawyers. Claiming that child porn laws are justified by economics is neither logical, rational, or factual.

Given how smart everyone says the judge is, the only thoughtful conclusion is that what the judge wrote in the opinion was a deliberate and purposeful lie.

Posted by: Daniel | Jan 9, 2010 12:57:06 PM

does not have any constitutional sense is a very weak idea with this country allows any agency to intervene without any weight that must be achieved fight coreg discover these radical ideas

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