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October 28, 2010

Noting that the circuits are getting behind below-guideline kiddie porn downloading sentences

This morning's Legal Intelligencer has this new piece discussing the Third Circuit's important Grober ruling from earlier this week (discussed here).  The piece is headlined "Appeals Courts Criticize Child Porn Sentencing Guidelines," and here is how it gets started:

As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so.

One of the key flaws cited by many of the judges is that the harsher penalties were imposed directly by Congress, every time the guideline was amended, rather than the usual process in which the Sentencing Commission studies an issue and proposes changes that are then subject to congressional approval. Prosecutors have been fighting the trend by urging trial judges to follow the guidelines and sometimes by taking appeals from those who don't.

But a decision in May from the 2nd Circuit and another this week from the 3rd Circuit suggest that the Justice Department may be waging a losing battle, and that trial judges are now freer than ever to reject the child pornography guidelines in cases where the judge sees the suggested punishment as too harsh.

In United States v. Grober, the Justice Department urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for David Grober was "outrageously high." Hayden, who sits in New Jersey, set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair.

Among the flaws cited by Hayden were a series of "enhancements" that, in her view, would apply in almost every case, as well as a failure to distinguish between defendants whose crime involved nothing more than downloading images as opposed to those involved in producing, selling or trading in illegal images. Ultimately, Hayden issued a 46-page opinion that declared the guideline was not worthy of deference. Instead of imposing a term of 235 months, she imposed a term of 60 months.

Now the 3rd Circuit has voted 2-1 to uphold Hayden's ruling, strongly rejecting the Justice Department's argument that Hayden had abused her discretion.

October 28, 2010 at 08:53 AM | Permalink

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Comments

Of course the answer, if courts do indeed persist in thumbing their nose at Congressional intent, is that said intent will be adopted as a mandatory minimum statute, rather than merely as a directive to the Sentencing Commission. The statute will bind the courts in a way they will be unable to thwart.

This is not exactly a new story. Have people forgotten so soon that the reason for mandatory guidelines and statutory minimums was PRECISELY that Congress had had enough of district judges' gushing for criminals and imposing lenient sentences? Have people forgotten so soon that Congress can and will do something about it?

Well, OK, fine, but forgetfulness has its limits as a legal strategy. And of course there are those who have not forgotten, such as incoming Chairman Lamar Smith.

Posted by: Bill Otis | Oct 28, 2010 11:33:46 AM

maybe what needs to happen is a higher court like the supreme court get off it's tail and tell congress it's not their jobs to judge criminals and set the actual sentences for them. To back off and do their own job. Considering the mess this country is in they HAVE PLENTY OF REAL WORK TO DO!

Posted by: rodsmith | Oct 28, 2010 2:52:47 PM

"gushing for criminals and imposing lenient sentences"

The average 2G2.2 sentence from 2007 to 2009 has been between 68 and 71 months, imposed upon individuals who mostly have zero criminal history. The average 2G2.1 sentence from 2007 to 2009 has been between 215-240 months. These are hardly "lenient sentences" or proof that judges are "gushing” over criminals.

As usual, Bill, the data's reality does not support your attempt to distort what is really occurring. Ultimately, I don't deny that your (and other's) inaccurate distortions may convince Congress to react. But at least recognize that, like a lot of arguments occurring in politics today, they are distortions.

Posted by: DEJ | Oct 28, 2010 3:04:11 PM

DEJ --

As I said, and you do not rebut or attempt to rebut, Congress answered what it (not me, IT) viewed as lenient sentences with mandatory guidelines and statutory minimums. If courts persist in bending over backwards to 'dis Congress and favor convicted defendants, they invite a repeat of exactly the same response. When it happens, don't say you weren't warned.

Posted by: Bill Otis | Oct 28, 2010 3:16:11 PM

The term "kiddie porn" minimizes the true nature of these photographs and movies and almost makes it sound like something cute. Although I would prefer the phrase "images and movies depicting child rape" or "crime scene photographs," at least use the more widely used term "child porn."

Posted by: Domino | Oct 28, 2010 8:24:19 PM

Bill, the implication of your original post to any reasonable person who reads it is that you believe district courts are "gushing for criminals and imposing lenient sentences" in child porn cases, and you are warning that Congress "will do something about it." My only point, and one you do not rebut or attempt to rebut, is that it is a distortion to say 2G2.2 and 2G2.1 defendants are being gushed over with low sentences. If Congress decides to react, it will only be because of distortions about current sentencing practices. And, for some reason, I just have a feeling you will be among the group doing the distorting.

Posted by: DEJ | Oct 28, 2010 9:11:31 PM

DEJ --

I am not required to accept your partisan version of what is and is not "lenient" and I don't. It's out of the defense bar cookie-cutter reflexively to blast sentence X as "too harsh," no matter what it is. It's part of routine defense advocacy, and deserves the same weight as anything else taken off the word processor.

You also say that, "If Congress decides to react, it will only be because of distortions about current sentencing practices." For four years, a liberal Congress has had resources vastly beyond anything I can command to see through these nefarious "distortions." And for those same four years, the sentences for child pornography have stayed where they are (even as Congress proved perfectly capable of acting on crack sentencing).

Take it up with Speaker Pelosi -- a person notoriously not prone to be "bullied" by right wing "distortions." But, just as a tip, best to address your letter quickly. She's about to be moving offices.

Posted by: Bill Otis | Oct 28, 2010 9:36:24 PM

The sentences for child porn possession cases [first-time offenders] has increased by 8 x's what it was in '98 - which makes these sentences "outrageously high."

Posted by: huh? | Nov 4, 2010 10:37:05 PM

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