« "Conservatives latch onto prison reform" | Main | "'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences" »

January 29, 2011

Second Circuit balks at genetic sentencing view of federal child porn offender

Though I think the child porn restitution decision by the Eleventh Circuit in McDaniel (discussed here) was the biggest federal sentencing story yesterday, today's New York Times has this piece reporting on another notable appellate ruling in a child porn sentencing setting.  The piece is headlined "Court Rejects Judge’s Assertion of a Child Pornography Gene," and it starts this way:

A federal appeals court in Manhattan overturned a six-and-a-half-year sentence in a child pornography case on Friday, saying the judge who imposed it improperly found that the defendant would return to viewing child pornography “because of an as-of-yet undiscovered gene.”

The judge, Gary L. Sharpe of Federal District Court in Albany, was quoted as saying, “It is a gene you were born with. And it’s not a gene you can get rid of,” before he sentenced the defendant, Gary Cossey, in December 2009.

A three-judge panel of the United States Court of Appeals for the Second Circuit said in ruling on the defendant’s appeal, “It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics.”

Judges Amalya L. Kearse, John M. Walker Jr. and Rosemary S. Pooler ruled that a sentence relying on findings not supported in the record “seriously affects the fairness, integrity and public reputation of judicial proceedings.”

The panel ordered that Mr. Cossey be resentenced by a different judge, a step it said was taken only where a judge’s fairness or the appearance of fairness was in doubt. “This is one such instance,” the panel said.

The Second Circuit's full work in US v. Cossey, No. 09-5170 (2d Cir. Jan. 28, 2011), is available at this link.

January 29, 2011 at 12:32 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20148c822fe6a970c

Listed below are links to weblogs that reference Second Circuit balks at genetic sentencing view of federal child porn offender:

Comments

Judge Sharpe might want to study up on the validity of Eugenics. Especially as practiced by the Nazis who believed certain persons had a genetic predisposition to commit crimes and needed to undergo forced sterilization.

Posted by: Z | Jan 29, 2011 2:19:02 PM

Outrageous.

"The panel quoted Judge Sharpe as telling the defendant, “I’m not sure there’s any answer for what I see here beyond what I’m about to tell ya,” and predicting that in 50 years, Mr. Cossey’s conduct is likely to be found to have been caused by a gene.
“You are what you’re born with. And that’s the only explanation for what I see here,” the judge said. "

So anyone with an unproven genetic makeup cannot make thier own decisions and are driven by genetic makeup to do what they did? Every person has a choice to do what they do, just like the judge. I dont buy it for a second.. this Judge insists on taking free will out of the ocasion, then he has no right to complain when they find his DNA has the same makeup and put him in jail, regardless of his actions.

Additionally, lets suppose for a second that there is any validity into this judge's theory..how can he punish someone for something they have no control over? Would that not be a case of the offender being a patient (see: Minnesota), and thus sentencing them to jail time is not the proper treatment? IF he is going to say a gene is causing it, he cannot rightly say it was freewill. That makes it a sickness, not a crime, requiring treatment, not jailtime. So. even by his own unproven theory he is STILL punishing something that he clealy stated an offender has no control of, and thus a sickness. It would be nice if this judge could recognize his statement about genetics, lack of choice.. and then prescribe the offender treatment instead of 6 years of jail.

Posted by: tbucket | Jan 29, 2011 5:17:45 PM

Likewise, I would also point out that people are a product of their environment, not just their DNA. Life experience and bad choices leads to these issues, not a genetic misfire. This judge is nuts and should be removed.

Posted by: tbucket | Jan 29, 2011 5:19:17 PM

I support applying Daubert and requiring scientific evidence in law drafting, as well as sentencing policy, and not just in expert testimony.

1) The defendant had psychiatric and psychological evaluations. It is certain that they contained a family history. Familial conditions are one indication of some genetic influence. Tuberculosis runs in family due to contagion, not due to genetics. The overwhelming majority of child predators were victims themselves. They learned their predatory behavior from others. One theory of homosexuality is that homosexuals inherit their preference for males from their mothers. However, there should be evidence and it should be debated in court.

2) If the judge is correct about a genetic predisposition, his sentence is influenced by the status of the defendant. Status crimes have been prohibited for 60 years. I would like to see them return. However, one way around the prohibition is a count, as in 123D. A high recidivism rate implies inability to control the expression of these genes. Status crime is not lawful at this time. So the judge made an error of law by his reasoning.

Reversal and resentencing is in accordance with the way the law is today.

Posted by: Supremacy Claus | Jan 29, 2011 5:48:15 PM

If such a gene can be found, and proves to be determinative of sexual preference, pedophilia will become a protected class, as another involuntary human state. Anti-discrimination laws will be enacted by the lawyer, to generate another cause of action to defund the productive entities of our nation. In Lawrence v Texas, the Supreme Court immunized butt banging, a sexual practice that has led to the assassination of 10's of millions of people, yet another holocaust courtesy of this branch of government. One may not even verbally criticize homosexual conduct without getting sued with ruinous claims.

So immunizing pedophilia should not be that difficult. If pedophilia associations want a short cut to massive legal power in this country, like that of the homosexuals and the feminists, fund a search for the gene. The research may cost $1 million, cheap for the legal advantages.

At some point, the public will decide, enough.

Posted by: Supremacy Claus | Jan 29, 2011 10:35:49 PM

I agree that the words a judge uses in handing down a sentence are important and that the judge's use of terminology affects what people think of the courts.

But what if the judge had simply said: "I'm not entirely certain what the reason for this is (and I don't believe that science knows either), but recidivism rates for these types of offenses are extremely high; I'm not persuaded that there's any reason to think this case is any different; and I'm not persuaded by the contrary opinions of the experts engaged by the defense because I'm not persuaded that their methodology is sufficiently rigorous to give their conclusions much weight"? Sounds like the same result would have been upheld easily on appeal had the judge not used unfortunate language attributing what he considers to be a difficult-to-control propensity to a "gene" as opposed simply to a propensity that few offenders control successfully.

Posted by: guest | Jan 31, 2011 4:04:07 PM

well let's say your right guest and he said

"But what if the judge had simply said: "I'm not entirely certain what the reason for this is (and I don't believe that science knows either), but recidivism rates for these types of offenses are extremely high; I'm not persuaded that there's any reason to think this case is any different; and I'm not persuaded by the contrary opinions of the experts engaged by the defense because I'm not persuaded that their methodology is sufficiently rigorous to give their conclusions much weight"?"

Well guess what. with his own words he proves he's a no nothing idiot who has no clue on the bench. Becasue first recidivism for sex crimes are lower than every other crime on the book. Second that h as been proven OVER AND OVER AND OVER AND OVER AND OVER in 1,000's of studies for the last DECADE by HIS OWN BOSSES you know The U.S. Department of Justice!

so let's get the retard off the bench and in a home for the senile where he belongs

Posted by: rodsmith | Feb 3, 2011 10:13:35 AM

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