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January 27, 2010

Thorough and thoughtful district court defense of federal child porn guidelines

As readers of this blog know, in recent years a federal district judges have written thorough and thoughtful sentencing opinions assailing the long prison sentences recommended the the current federal sentencing guidelines for child porn downloading offenses.  Yet, while these often-forceful decisions suggest that it is hard to justify within-guideline sentences in many downloading cases, the fact remains that roughly half or more of all child porn sentences as still imposed within the ranges set out in the federal guidelines.  Thus, I am pleased to have learned of a new thorough and thoughtful opinion from a district judge in the Northern District of Ohio that provides thorough and thoughtful defense of the federal child porn guidelines.

The opinion in US v. Cunningham, No. 1:09CR154 (N.D. Ohio Jan. 26, 2010) (available for download below) is authored by Judge John Adams, and I was feeling especially patriotic and proud when I read its engaging explanation for what a within-guideline sentence of 121 months was justified in this case.  The full opinion is an absolute must-read for everyone working in this area, and I found this passage with mini-slam by Judge Adams on his colleagues especially noteworthy:

In an effort to more fairly judge the nature and circumstances of this offense, the Court personally reviewed all of the images and videos.

The Court made its request to view the images shortly before the first sentencing hearing in this matter.  At that time, Agent Hagan expressed surprise that the Court wished to review the images in their entirety.  Agent Hagan indicated to the Court that she had been the affiant in more than 100 child pornography investigations and, absent a matter going forward to trial, a judge had never requested to view the photographs at issue.  While only a minor sampling, this revelation was shocking to the Court.  As detailed above, the agents handling these matters are able to aptly describe the contents of each image. Those descriptions, however, are little more than words on paper.  Absent examining the images, one cannot get a true sense of the depravity that they depict.  Thus, the Court implores any reviewing Court to personally examine the images at issue and not simply rely on a written description of their contents.  The Court acknowledges that the review of such images is, to say the least, uncomfortable.  There are some images that are haunting, and they cannot be unseen. However, any uneasiness felt by the individual reviewing the image pales in comparison to the harm caused by the image being created in the first place.

Download Cunningham_Sentencing_Memo

Notably, in the one case in which I testified in court as an expert witness on these matters, I did witness the sentencing judge view (in open court on a laptop only she could see) some of the child porn images for which the defendant had been convicted of possessing. Thus, I know that at least some district judges other than Judge Adams will look at the criminal images before sentencing these child porn offenders. But it seems that this practice may be the exception rather than the rule.

January 27, 2010 at 10:17 AM | Permalink

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Comments

Doug.

I have come to learn reading this blog that you describe opinions as "thoughtful" when they are in fact nothing more than prejudice wearing a black robe (and no longer even a wig).

"The only emotions on display are those of defendants, sorry that their actions were discovered by law enforcement."

Oh really? So anyone who exhibits any type of remorse is faking it. That's the sign of a thoughtful mind. /sarcasm.

But the biggest problem with the opinion is morass of data which he drags us into in the last part; data which he clearly doesn't understand. There is a real and significant distinction between adults who molest children AND view child pornography vs adults who only view child pornography created by others. The judge consistently confuses these two groups of people and uses data from the former to justify punishment of the latter. This is the opposite of thoughtfulness.

There is in fact nothing truly thoughtful about this opinion at all. It doesn't attempt to engage the material in any significant way other than the one fact he happened to bother to look at the pictures himself. But not even the obvious hypocrisy that he got to look at all the picture himself; the same pictures to which he is now sentencing another to jail, can penetrate his dull mind.

I'm sorry. What a cow.


Posted by: Daniel | Jan 27, 2010 12:00:06 PM

Okay Dan, I'll bite, where's your "empirical data" that shows child porn defendants (child abuse afficionados) who have not yet diddled are any less/more likely to re-offend compared to child porn defendants who have diddled? In another words, on what basis do you suggest there are even two subsets involved?

Even beyond that leap, the facts show this guy was distributing, not just diddling (himself), and he got a sentence consistent with the law. Just because other jurists don't see any problem with rich, white offenders "just lookin'" at images of sickening child abuse doesn't mean all judges are equally oblivious to the offender's role in causing these images to be made, and in this case specifically, distributed.

Even if you believe that child porn lovers don't always become child abusers themselves, some subset does, and that subset is undoubted fueled in this obsession by these images - images this offender was all too willing to distribute to god knows how many people within his sick online community of child abusers before he was caught and then started crying.

When Judge Adams looks into the eyes of these children he undoubted looks into the eyes of some children who were abused by people whose obsession with child sex started with pictures and video. An obsession that these days fueled and promoted by online distribution by people like this feckless offender.

Bravo Judge Adams, Bravo.

Posted by: Ferris Bueller | Jan 27, 2010 2:27:34 PM

Daniel: What I try to do with the adjective "thoughtful" is describe rulings/writings that seem to be full of thought. What I try not to do is use this adjective merely to describe rulings/writings with which I personally agree. I know that some "thoughtful" people can have different views on difficult issues than do I (and that some "not-so-thoughtful" people can share my views).

I welcome your (thoughtful?) criticisms of this ruling and your (thoughtful?) views of what constitutes "prejudice wearing a black robe," but I do not fully understand why you (and some others) seem to get hot and bothers by my (over)use of the adjective thoughtful.

Posted by: Doug B. | Jan 27, 2010 2:50:31 PM

daniel: "There is in fact nothing truly thoughtful about this opinion at all."

me: when your idea of "thoughtful" commentary is to call a woman "eye candy" and imply she only married for money, its hard to take you seriously as an arbitrator on what constitutes thoughtfulness. your insult of the judge is really misplaced - the judge made a determination on the icky perv in front of him which appears appropriate. as the judge notes, there were factors which said he was worse than the normal icky perv - other factors which were more mitigating including that as icky as that icky perv was, there was way ickier pervs out there (although for sheer ickiness, its hard to get much more icky than the video this guy was responsible for - sendign photos of his niece to other icky pervs is pretty bad too).

of course, you can disagree with the judge's conclusions - given the sheer ickiness of the actions by mr. icky perv here, I would have probably given a harsher sentence because of how sick that reading about that video made me feel. but I still think it was a good opinion - the judge took the mandate and arguments seriously and reached a reasonable conclusion.

Ferris: "Just because other jurists don't see any problem with rich, white offenders "just lookin'" at images of sickening child abuse doesn't mean all judges are equally oblivious to the offender's role in causing these images to be made, and in this case specifically, distributed."

me: I do not think that is really the case - generally even the judges who disagree with teh guidelines give comparatively harsh sentences and if you have a case where a judge indicates that the icky pervs with child pron aren't serious offenders, i haven't seen it. I could see in some cases with less icky facts where it might be justifed to give the icky perv the mandatory minimum of 5 years. but not in this one - the guy was distributing and even created a video of him acting highly icky with a photo of a young girl.

Posted by: virginia | Jan 27, 2010 4:33:12 PM

@Daniel

"Even if you believe that child porn lovers don't always become child abusers themselves, some subset does, and that subset is undoubted fueled in this obsession by these images"

Where is your causal evidence?

Also NO IMAGE can indicate the level of harm (or not) which is being caused at the time. Only the interpretation of the viewer is what is 'real' (i.e. not).

NLO

Posted by: Dr Nigel Leigh Oldfield | Jan 28, 2010 8:41:41 AM

Are you serious, Doc?

Bergen, R.K. & Bogle, K. “Exploring the Connection Between Pornography and Sexual Violence.” Violence and Victims. Vol. 15:3, 227-234 (2000).

Malamuth, Neil M; Addison, Tamara; Koss, Mary "Pornography and sexual aggression: Are there reliable effects and can we understand them?" Annual Review of Sex Research, Vol. 11: 26-91 (2000).

Posted by: Ferris Bueller | Jan 28, 2010 2:49:31 PM

Absolutely,

"While the research doesn't prove that pornography causes men to rape or that pornography has no role in sexual violence, most studies conclude that pornography creates certain attitudinal changes in men."

http://www.drake.edu/artsci/PolSci/ssjrnl/2002/Gerberrevised.htm

There is no in-vivo evidence or proof for your claim, quite the opposite, in fact.

As pornography availability has increased massively (in scale and nature), *real* sexual offending has declined.

I could find all the other links, but I feel it may be wasted on you.

NLO

Posted by: Dr Nigel Leigh Oldfield | Jan 28, 2010 8:40:16 PM

The record in this case revealed that Mr. Cunningham was NOT a prolific distributer of child pornography. The forensic review of his computer and on-line activity revealed that on two occasions in 2008, Mr. Cunningham distributed approximatly 14 images of child pornography over the internet using his e-mail account. The images depicted young pubscent (11-13 yer old) girls engaged in sex acts with adult males, primarily fellatio. Also located on Mr. Cunningham's computer were 132 images that were characterized as child pornography and one movie file (under the federal sentencing guidelines a movie file is counted as 75 images. The movie file found on Mr. Cunningham's computer was approximately 5 seconds long). The agent admitted that many of the files were duplicates of other files and that every time a file is accessed it is saved as a new file. Mr. Cunningham admitted to going through a time in his life, after the failure of a long-term relationship, where he spent a tremendous amount of time visiting adult pornography sites and adult sex oriented chat rooms. When questioned at sentencing about the amount of age appropriate material found on Mr. Cunningham's computer, the agent testified that there was a lot, but she did not focus on the adult content because it was not relevant to her investigation. Well, it is relevant to the whether or not the defendant is truly interested in children for sexual gratification, or if his possession of child pornography was ancillary to having a viewed a large amount of adult pornography and having visited numerous sites. The bottom line in this case was that the judge based a lot of his decision, not on the nature and content of child pornography possessed by Mr. Cunningham, but based on photos also found on his computer involving children that did not depict child pornography. Some of these photos were of children in swim suits at a pool party. Although a forensic psychological exam revealed that Mr. Cunningham was not a threat to offend against children sexually, the court disregarded the forensic psychologist's conclusions and substituted its own. All told, Mr. Cunningham possessed far less, and transferred far fewer, images of child pornography than the vast majority of child pornography defendants in federal court. Many of these defendants have received far less time than Mr. Cunningham. Finally, it should be noted that the forensic review of Mr. Cunningham's computer revealed that the last time any of the images of child pornography were accessed on Mr. Cunningham's computer was several months before the authorities executed a search warrant on Mr. Cunningham's computer. This hardly supports the notion that Mr. Cunningham was somehow obsessed with children sexually.
E. Bryan, Asst. Federal Public Defender and Attorney for Mr. Cunningham.

Posted by: Edward Bryan | Feb 1, 2010 12:31:26 PM

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