« California continues to struggle with corrections costs | Main | "Fraudster appeals whopping 845 year sentence" »

March 24, 2010

Another vet, claiming PTSD contributed to child porn downloading, gets big sentencing break

This remarkable local story out of Montana, which is headlined "Man blames PTSD for child pornography downloads," reports on another notable sentence break given to a notable child porn offense.  Here are the details, which spotlight many of the hottest issues in current federal sentencing debates:

An Iraq war veteran in Helena, who claimed that post-traumatic stress disorder contributed to his viewing child pornography, was sentenced Tuesday to two years in federal prison, to be followed by 10 years of supervised probation.

Keith Madsen said it was during his deployment in Iraq in 2004 that he began looking at pornography, and when he returned home with an injured arm, depressed and suffering from anxiety attacks, that he escalated his viewing from adult photos to those of children. He would download the images from his work computer at Fort Harrison — where he was a member of the Army National Guard Reserves — onto his iPod for viewing at home.

It was an unusual case in a couple of aspects, including the defense, the plea agreement and the sentencing. The U.S. Attorney’s Office had allowed Madsen, 27, to plead guilty to possession of child pornography, and dropped the more serious charge of receipt of child pornography, which carries a mandatory minimum sentence of five years in prison.

Assistant U.S. Attorney Marcia Hurd said that was done in part because of Madsen’s mental health diagnoses, which include not just PTSD but also long-term anxiety and obsessive-compulsive disorders, and depression. “He’s been given a significant break. We have a policy at the Department of Justice (that in a plea agreement) they must plead to the most significant charge, and I made a special case to give him leniency,” Hurd said.

But she was quick to add that some type of jail term was necessary, not just because by law Madsen could only be on probation for five years or less, but also because of some of the horrific images he downloaded. She said 119 child pornography images were found on his iPod. “These are not just pictures. He wasn’t just surfing the Internet and looking at something that’s not real,” Hurd said. “We are talking about pictures, not of naked teen girls, but pictures of 3-, 4- and 5-year-olds raped and sodomized by adult males and little boys sexually abused by adult females. He kept looking at them and put them on his iPod, and didn’t delete them until he was caught with them.”

Hurd added that Iraq war veterans who had worked on the case were upset that part of Madsen’s defense included PTSD. “They took great offense at the suggestion that service to their country or even PTSD was responsible,” Hurd said. “PTSD is not responsible or an excuse for someone to be involved in child pornography.”

But Fatima Amelkin, a licensed clinical social worker who has treated Madsen since last June, argued that in her opinion, he wasn’t a sexual offender even though an analysis by a federal therapist said he was. She said he has a chemical imbalance that contributed toward his mental health issues, but that he was being successfully treated for those and wasn’t a danger to his family or the community.

“The Veterans Administration didn’t provide him with the appropriate services as he deserved,” Amelkin said, noting that he wasn’t diagnosed with PTSD until five years after his return from Iraq, and that the diagnosis didn’t come from the military, but from her as a private practitioner. “… I don’t see Keith as a classic, or what you would expect a sex offender to be, so I don’t consider him to be a sex offender.”

Friends and family members testified on Madsen’s behalf, saying that his tour in Iraq changed the outgoing, friendly Madsen into someone reserved and quiet, attributed in part to his PTSD....

In letters and testimony, they added that Madsen is a decent man and a hard worker who deserves a second chance. Madsen, who was in tears at times as he addressed the court, professed deep-felt remorse and apologized for the impacts his actions had on those around him. He also noted that he can’t go hunting anymore, will have to register as a sex offender and hasn’t been allowed to pick up his 2-year-old son from day care or even spend time alone with him. “There isn’t one day that passes that I don’t regret what I did,” Madsen said.

He came to the attention of special agents after a routine check of computers at the Veteran’s Administration offices at Fort Harrison on May 14 last year turned up an address of a person accessing child pornography sites on the Internet, Hurd said. It was traced to Madsen’s computer, so as a ruse, Madsen was told on June 2 that the computer had a virus and needed to be replaced. The following day, he told his supervisor that he had been visiting porn sites, then minimizing the pictures while they were downloaded onto his iPod to be viewed at home.

U.S. District Court Senior Judge Charles Lovell said while PTSD is troublesome and that incarceration could possibly harm Madsen, he worried that Madsen wouldn’t get the help he needs in the community, especially due to the five-year probation limitation. “The court has to consider not only the welfare of the defendant, but also the danger to the public and the best manner in rehabilitating the defendant,” Lovell said, adding that the two-year sentence is a significant downward departure from the recommended guidelines of 57 to 71 months for Madsen. “It is perhaps the most lenient sentence this court has imposed in a case of this kind, which is a credit to your background and character.”

This reporting is especially valuable because it spotlights the impact and import of prosecutorial discretion as much as judicial discretion.  The federal prosecutor could (and should?) have demanded a plea to a charge that carried a 5-year mandatory minimum term, but she decided this was a "special case."  But, problematically, one aspect of what makes this case "special" is the fact that the defendant used VA computers while at work to download kiddie porn. 

Of course, as the reporting also shows, this defendant is to suffer some (not especially unique) collateral consequences in addition to his "lenient" prison term in the form of the (scarlet) sex offender label,  permanent loss of his Second Amendment rights, and perhaps permanent diminishment of his parental rights.  I suspect that these collateral consequences will impact and diminish the defendants qualify of life for decades in ways that the exact number of years he serves in prison will not.  And, arguably, the failure of our society to truly take care of our servicemen placed a role in this human tragedy.

March 24, 2010 at 09:47 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e201310fd6a4aa970c

Listed below are links to weblogs that reference Another vet, claiming PTSD contributed to child porn downloading, gets big sentencing break:

Comments

This guy is dangerous. I think it is clear the reason he never removed the images in the first place is because he saw things just as disturbing while he was in Iraq. Still, giving a "serviceman's discount" is total BS considering anyone else in the country who has ever been busted for the same thing got a lot more time. (Including other veterans.) I find it likely that this man will not be long before either committing a child-porn offense again or worse, kills someone or a child. Sexually, I don't think he's any more dangerous than anyone else, but physically I worry someone who has been through as much stress as him will eventually snap. He needs some major mental evals before being released.. I think it is sad our country uses servicemen and women this way, until their mental faculties are permanently damaged.

Posted by: Tbucket | Mar 24, 2010 12:53:11 PM

I will not comment on the substance of the article, because Prof. Berman gets upset, but apparently not enough to stop posting these stories, bringing opprobrium on the dumbass court. The defendant is not the most idiotic party in that story, downloading child porn on a federal computer. The judge is. The story further supports my suggestion to demand total e-discovery of the computers of all federal officials harassing decent, hard working productive people, in their land piracy operations. I hope that Prof. Berman will post a story of that if he comes across one.

I would appreciate an explanation of the the elements of possession of child porn and how they differ from the elements of receipt of child porn. How is it possible to possess child porn without having received it? I understand how one may receive but not possess child porn, by getting rid of it.

Posted by: Supremacy Claus | Mar 24, 2010 2:23:52 PM

Funny you should mention that, SC. The elements are virtually identical; the only defendant who could possess child pornography without receiving it is the most culpable defendant of all: The one who recorded it. That's because, as a practical matter, a defendant will have to knowlingly receive it by downloading the file or otherwise "ordering" the contraband. There's virtually no other way of coming to possess those images, unless you have recorded them yourself (also a significantly more draconian federal felony, and after Raich there's no real argument that the commerce clause can't be the basis for jurisdiction in those cases, either). Which is why the charge is such a boon to federal prosecutors: Charge them with receipt and possession, offer five years on possession in exchange for dropping receipt.

Additionally, once you've completed the act of receipt you've completed the act of possession. The statute doesn't criminalize inadvertent receipt of prohibited images; you must knowingly receive the depictions, which is to say at the time you came to possess them you were aware the images were prohibited depictions of minors. Destroying the images is a consideration for mens rea purposes or the affirmative defense if you possessed three images or fewer, but nothing more.

Posted by: Alec | Mar 24, 2010 4:19:41 PM

The sentence sounds fair to me. The sentence involved for a first time offender with a mental health problem is serious, but the Assistant U.S. Attorney appropriate recognized that the purpose of the criminal justice system is not simply to put people away for the longest sentence authorized by the law.

A large share of U.S. District judges really hate the child porn sentencing guidelines and the related statutory minimum sentences because the punishment frequently isn't a good fit for the crime or the offender. I suspect that this Assistant U.S. Attorney was aware of that fact and chose not to antangonize the bench were it wasn't necessary to do so.

I also wouldn't be surprised if the deal reflects intramural tension in the Justice Department. Most child porn prosecutions are handled out of a special task force from the head office that has twisted the law to try to get cases heard in rural areas like Montana in the belief that those juries will be more favorable (not always with sucess). The local U.S. Attorney's offices aren't generally all that pleased to have their services commendeered by the out of town Justice Department folks and to have their office involved in blatant venue shopping.

A deal like this one suggests to the head office task force that Montana might not be the ideal place to set up a porn case, as the head office might not get the kind of local cooperation it wants, a message that the local U.S. attorneys' office might want to send so that the head office does not waste the local office's time (which would be better sense of crimes that are a greater threat to local public order).

Of course, all this analysis could just be cynicism talking. Lawyers who go into public service often do so for idealistic reasons and maybe the Assistant U.S. Attorney was simply trying to do the right thing.

Posted by: ohwilleke | Mar 24, 2010 10:04:56 PM

horse pucky alec

"There's virtually no other way of coming to possess those images, unless you have recorded them yourself"

I take it you have NOT seen the reports on how many 10's of MILLIONS of computers in the US and 100's of MILLIONS around the world that are basically robots being ran by criminals and used for everthing from stoarage space to attack machines.

WAKE UP AND GET A CLUE!

Posted by: rodsmith | Mar 24, 2010 11:06:27 PM

I'm just saying he won't get the treatment he needs in those two years of prison. It's fairly clear this stems from mental trauma, and he needs to be somewhere he can get mental health counseling. He won't likely make it through a year of supervised parole before going straight back in the can for similar or more disturbing things.

And yes, many a computer are at risk to hackers and viruses, allowing unwitting PCs to be used as storage for their filth. However, the article did say he was storing them and viewing them on his ipod at home and at work. Not exactly the actions of an unwitting cybervictim.

Posted by: nadal | Mar 24, 2010 11:36:05 PM

Alec and Rod: Both of you provided excellent and insightful analysis of that legal question. One implication is that the defendant should never admit anything nor accept offers of a plea bargain. The main tool for conviction is the admission. Even if the computer contains a credit card purchase in the name of the defendant, he should still claim, the credit card number were obtained in an identity theft. This defendant could claim he was set up by bureaucratic rivals. I am thinking of tactics for the innocent defendant, and not interested in helping guilty defendants.

This may be a coincidence, but I am being besieged this year by intrusive government and regulatory intrusions, traffic stops, and threats of criminal prosecutions. The Supremacy suspects this onslaught is caused by the laissez faire attitudes of the Bush administration, and is caused by the need for government to raise revenue. The resistance to these efforts is generating massive government expense, to make sure government pays dearly for every inch of its over-reach.

Posted by: Supremacy Claus | Mar 25, 2010 12:19:25 AM

How about this method of possession but no receipt? You discover that your computer has been taken over by mal-ware that has delivered all sorts of contraband to you, everything from pirated music to child porn to the location of Jimmy Hoffa's body. Instead of getting rid of the material you decide to keep it.

I don't see that the element of receiving the material is present under that circumstance.

Now a nasty question: Could the government (legally) set up such a distribution network, wait for people to discover the infection and then track whether the material gets removed and if not obtain warrants and prosecute? Some fact patterns that aren't all that less egregious have been ruled to not be entrapment, I'm just wondering if the above would be over the line.

Posted by: Soronel Haetir | Mar 25, 2010 9:18:31 AM

of course not soronel....our glorious cout has rules it's perfectly LEGAL for the govt to lie, cheat, steal WHATEVER it takes.

Posted by: rodsmith | Mar 25, 2010 11:29:14 AM

Soronel, you're mostly accurate. It's not that the element of "receiveing" is not present; it's that element of "knowingly receiving" is not present. As you pointed out, it is possible for a person to "knowingly possess" something without having "knowingly received" it. The hypotheticals, however, are still rare and tough to envision.

Nevertheless, in coming up with those few examples, the real question should be, does the distinction warrant a 5 year mandatory minimum?

Posted by: DEJ | Mar 25, 2010 12:02:07 PM

Here is a real life situation - happened to my husband. Crazy man sends CP to 125 random e-mails that he obtained from guys trading legal porn. My husband received his e-mails which contained a mix of CP and legal one night, never had contact with crazy man before or after, deleted images promptly and 5 months later our computers were confiscated. We didn't have the money to fight more than we did. My husband got 5 years AND lifetime supervised release. Crazy man gets 12 years and 5 years supervised release. The distinction between receipt and possession is nothing more than a prosecutor's way to get promotions or make political hay.

Posted by: BGrace | Apr 18, 2010 10:27:41 PM

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