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March 26, 2010

"Judge Calls Electronic Monitoring Excessive Bail in Child Pornography Case"

The title of this post is the headline of this piece in the New York Law Journal, which reports on the latest significant sentencing decision of EDNY's Judge Jack Weinstein. Here is how the piece starts:

Eastern District of New York Judge Jack B. Weinstein has held unconstitutional the electronic monitoring of a Brooklyn pizzeria owner awaiting retrial on child pornography charges.

The judge found that the monitoring, mandated by the Adam Walsh Child Protection and Safety Act of 2006, constitutes unconstitutionally excessive bail and violates defendant Peter Polouizzi's procedural due process rights. "The basic defect of the Adam Walsh Act, as applied, is that it imposes a mandatory limit on freedom of an accused without permitting an 'adversary hearing,'" Weinstein held in United States v. Polouizzi (Polizzi), 06-cr-22 [available here].

"Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans."

Weinstein's opinion marks yet another setback for the government in its prosecution of Polouizzi, who has admitted collecting thousands of images of child pornography. Polouizzi claims he downloaded the photos in the hope of saving the children or perhaps of finding evidence of the brutal rapes he endured as a child.

Since a jury rejected Polouizzi's insanity defense in October 2007 and convicted him of 23 counts of receiving and possessing child pornography, Weinstein has twice ordered the case to be retried. The first order was reversed by the 2nd U.S. Circuit Court of Appeals; the second order is on appeal. After the government filed its most recent appeal, Polouizzi's counsel, Mitchell J. Dinnerstein, contested the conditions of his bail.

Wednesday, Judge Weinstein ordered the discontinuation of the electronic monitoring, finding that it violated both the Eighth Amendment prohibition against excessive bail and the Fifth Amendment right to procedural due process. The judge cited more than half a dozen decisions finding the Adam Walsh Act, which imposes electronic monitoring without discretion, unconstitutional in cases where flight or safety are not at issue.

"Electronic monitoring devices that inhibit straying beyond spatial home property limits, like those used to restrain pet dogs, are intrusive. Their requirement, when mandated and unnecessary, may constitute excessive bail in particular cases," Weinstein wrote.

March 26, 2010 at 01:48 PM | Permalink

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Comments

no bail monitoring isnt excessive. but subjective monitoring after the prisoner is released without prior notice from the doc. and furtherwise is inclined to no other options.

Posted by: jermel chambers | Mar 29, 2010 8:58:53 PM

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