January 24, 2011
Sixth Circuit rejects constitutional attacks on 10-year mandatory minimum for kiddie cruising
The first two paragraphs of today's Sixth Circuit decision in US v. Hughes, No. 09-5787 (6th Cir. Jan. 24, 2011) (available here), tells a story that is as depressing as it may be common. In reverse order, here are these paragraphs:
On July 7, 8, 13, and 24, 2008, [Nathan] Hughes exchanged online communications with someone he thought was a 14-year-old girl. In reality, his online companion was not a child, but rather an undercover detective. In their last exchange, Hughes proposed meeting at a local park in Louisville, Kentucky for the purpose of engaging in sexual intercourse and/or oral sex. When Hughes arrived at the park, officers recognized him from online photos and the description of his vehicle. He was arrested by the Louisville Metro Police Crimes Against Children Unit, and indicted on the charge of attempting to persuade, induce, or entice a 14-year-old girl to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The statute carries a mandatory minimum sentence of ten years of imprisonment. 18 U.S.C. § 2422(b).
Nathan Hughes was sentenced to prison for the mandatory minimum term of ten years after pleading guilty to attempting to entice a minor to engage in a criminal sexual act, in violation of 18 U.S.C. § 2422(b). On appeal, Hughes argues that his mandatory minimum sentence violates the Eighth Amendment because it is grossly disproportionate to his crime, and that it violates the Fifth Amendment’s due process and equal protection guarantees because similarly situated defendants charged under 18 U.S.C. § 2423(b) are not subject to a mandatory minimum. Because these arguments are without merit, we affirm the district court’s sentence.
Notably, the Hughes opinion does not discuss how old the defendant is or whether he presents a threat to society beyond his misguided interest in hooking up with underage girls. Based on the nature of his constitutional claims (and the panel's decision to issue a published opinion), I suspect the defendant in this case is relatively sympathetic but for his illegal interest in "jailbait" and his stupid decision to pursue this interest.
But the Sixth Circuit is on solid ground when it rules that existing constitutional jurisprudence presents no barriers to Congress's decision to "reward" stupid losers like Nathan Hughes with a minimum of a decade in the federal pen. What I worry about, however, is whether stupid losers like Nathan Hughes may end up a bigger threat to society after he serves this mandatory minimum prison term. If there was good reason to believe that this 10-year mandatory minimum generally deters this kind of on-line kiddie cruising, I would not worry too much about the fate and future of Nathan Hughes. But I have yet to see any firm data on this important front.
UPDATE: Kudos to all commentors on a really interesting dialogue in the comments to this post.
January 24, 2011 at 11:26 AM | Permalink
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It is not depressing to me at all that this person was trawling the internet looking for an underaged CHILD to have sex with and got caught and given 10 years! Mr. Hughes actually went to meet, what he thought was, a CHILD. I don't know if Professor Berman has children or not, but I am quite sure he would not want Mr. Hughes living next to his CHILD or his CHILD talking on the internet with Mr. Hughes. This story is not depressing in any way shape or form to me. Is ten years too long? Not in my opinion...there are children in Kentucky who are safer for the next 10 years because of this! This blog is entirely too sympathetic to child internet crime offenders!
Posted by: anon | Jan 24, 2011 2:37:10 PM
"Notably, the Hughes opinion does not discuss how old the defendant is or whether he presents a threat to society beyond his misguided interest in hooking up with underage girls."
To put a face to the name here is his myspace page.
and a news article regarding his arrest
He was 24 at the time of his arrest.
"...is whether stupid losers like Nathan Hughes may end up a bigger threat to society after he serves this mandatory minimum prison term."
Posted by: Robert | Jan 24, 2011 4:36:02 PM
I do have children, anon, and I am concerned about twenty-somethings losers like Hughes "trawling the internet" looking for underage teenagers with which to have sex. That is why I carefully monitor my kids internet usage at home. I am pleased there are criminal laws against such trawling, but it is not at all obvious to me that a 10-year prison term for losers like Hughes really makes my neighborhood or others safer. If there is evidence that it does (and does so at less expense to taxpayers than, say, trying a short prison term and sex education programs for such losers), then I will be less depressed by these kinds of stories.
Meanwhile, as a parent, I cannot readily control my children's exposure to the losers who drink and drive or text and drive and create a daily risk on the road to my family's safety and well-being. Do you think everyone who drinks and drives or texts and drives ought also be looking for 10 years in prison? Given that many teenagers seem to want to engage in sexual activity (unless they have changed a lot since I was a teenager), I still find it depressing that we use such extreme sentencing provisions to try to regulate the risk unwanted sex on the internet and yet never get nearly as tough concerning the risk of unwanted violence on our roadways.
Posted by: Doug B. | Jan 24, 2011 5:22:15 PM
I take issue with the "loser" term being tossed around.
Do I think those that do this type of trolling have issues that need addressed? Yes.
I think to many have the image in their minds that all such individuals are the unemployed, uneducated, and generally uncouth type.
What of the teachers, the lawyers, the businessmen and such that are convicted of sex crimes? The point is before their arrests, I am sure these people were seen as good people with many skills and their lives together. Instantly they are seen as losers.
I make no excuses for what those that are arrested for these sorts of crimes. With that said though, I believe that the public should realize that while a mistake (and a very serious one at that has been made, it does not necessarily mean a person is a loser.
I will agree with Doug that there is a sentencing disparity.
People have no problem with changing laws to fit the times and culture. Studies, polls, and even public opinions are generally in agreement that the sentencing and resources used for enforcement are outdated and ineffective towards prevention and rehabilitation.
Posted by: Questions Authority | Jan 24, 2011 5:47:16 PM
Professor Berman: "I am pleased there are criminal laws against such trawling, but it is not at all obvious to me that a 10-year prison term for losers like Hughes really makes my neighborhood or others safer"
me: especially since it appears that had Mr. Hughes gone out looking for teenagers at the local mall, had he successfully found a 14 year old and actually had sex with her, from my reading it looks like under Kentucky law he would have faced a maximum of 5 years in prison.
Professor Berman: "If there was good reason to believe that this 10-year mandatory minimum generally deters this kind of on-line kiddie cruising, I would not worry too much about the fate and future of Nathan Hughes"
me: assuming that there is any deterrent effect from the harsh online penalties, it may be solely to prevent people from using the internet to pick up teenagers - not from actually trying to pick up teenagers. its hard to see that as a good outcome.
anon: "It is not depressing to me at all that this person was trawling the internet looking for an underaged CHILD to have sex with and got caught and given 10 years! Mr. Hughes actually went to meet, what he thought was, a CHILD"
me: only Mr. Hughes knows for sure whether he was out looking for a 14 year old - or whether he was merely looking for any female attention which just happened to come from a detective who was playing a 14 year old. catching Mr. Hughes in the first scenario, we can all agree is good even if we might disagree about the reasonableness of a 10 year sentence. the second scenario is much sketchier - while it does not meet the legal definition of entrapment because Mr. Hughes upon finding out that his "admirer" is 14 years old could have run away - its morally entrapment because the police manufactured a crime that never would have otherwise occurred by preying on the defendant's desperation to get an arrest and show how tough they are on sex offenders.
Posted by: virginia | Jan 24, 2011 7:04:11 PM
There is also the relative neglect of other child abuse victims to consider.
Posted by: George | Jan 24, 2011 8:40:20 PM
This is just vile feminist lawyer witch hunting. Fourteen is biologically, and historically adult. The lawyer marker of 18 years of age is fictional. Lots of change happens at 14. Nothing happens at 18 that does not happen at 21, 41, 61, 81. That arbitrary age was to keep young competitors from the job market by union elites.
Fictional doctrines violate the procedural due process rights of the defendant. Imagine, being accused of the fictional crime of witchcraft, which carries a death penalty. Is fictional acceptable in a secular nation? I do not understand why the Eighth Amendment was invoked and not the Fifth. Someone please, explain it.
Not only is the vile feminist lawyer age of adulthood fictional. The victim was fictional. I am going to beat up Mickey Mouse if I ever run into him. I invite the authorities to arrest me. Can I be arrested for making an attempt or threatening to attempt a crime against a fictional character. If I ever see Santa Claus, my famous cousin, I plan to steal all his toys. Was the police officer posing as a girl in any way physically molested by the defendant? That would be a crime.
Ironic. Very intelligent Prof. Berman questions the intelligence of the defendant. Is there anything to say about the intelligence of the charges, those who brought them, those who upheld them? Does the lawyer term of art, a technical term with extensive scientific validation, dumbass, come to mind?
Posted by: Supremacy Claus | Jan 24, 2011 9:32:04 PM
Dear Professor Berman:
SC hit the nail on the head for this one. Even as a parent (legally biased position by the way), our tax dollars are going to the "justice system" for cases like this based on Oprah Winfrey and feminist hysteria. Why? Political Capital.
Fourteen is usually the biological age of sexual maturation. Yet, the PS Education System provides information in this area except for values. If you can be charged as an adult in any other crime at this age or below, our prosecutors (BO and Charles Bettesta et al come to mind) have received too much influence in this area.
Note: Prosecutors are paid by taxes and have a greater interest in influencing lawmakers to make the prosection of individuals (not necessarily criminals) easier on their part. Law Enforcement, judges and public defenders also bebefit from this arrangement, including the SCOTUS.
Posted by: albeed | Jan 24, 2011 11:34:49 PM
Geez I agree with SC and albeed on this one.
And Anon can you define an "underaged CHILD" for me please.
(I have a suspicion you were caught up in your own rhetoric.)
Posted by: Rob | Jan 25, 2011 4:14:20 AM
@ Rob: According to our laws, a 14 year old cannot have sex with someone over the age of 18, thus the 14 year old is an "underage CHILD." If you, and people like SC have an issue with the age of consent, then take it up with your state legislature or Congressman, but as of now, a 14 year old cannot have sex with a 24 year old
@Ginny: I am assuming that the defendant had a capable lawyer who would have brought up entrapment, and thus, the defendant was not entrapped. I would bet my house that the agent posing as the 14 year old identified him/herself as "14 years old" so I don't think the defendant was going to the mall to meet a 24 year old, but knew exactly what age he thought the CHILD was.
@Prof Berman: It is an impossibility to have a CREDIBLE study that gives empirical evidence on deterrance, "crimes averted" or other purposes of sentencing. If you know of one that has credible empirical evidence on any crime of the deterrent effects of ANY law, please tell us. Also, no credible psychologist will ever say that a child sex offender is ever "cured" by treatment...controlled yes, cured no! What we do know, is that for 10 years, Mr Hughes will not be having sex with underage children, so children are safer for that time period. Finally, if you think you have total control over who your kids are talking to on the internet, well, you are a bit naive. I am not saying you are a bad parent, I am saying that realistically, it's impossible to know what your kids are doing 24/7...IMPOSSIBLE!
Posted by: anon | Jan 25, 2011 8:58:20 AM
Anon: "It is an impossibility to have a CREDIBLE study that gives empirical evidence on deterrance, "crimes averted" or other purposes of sentencing. If you know of one that has credible empirical evidence on any crime of the deterrent effects of ANY law, please tell us."
(Crimes before law) - (Crimes after law) = (Change in crime after law)
It is not an impossibility to have a credible study on deterrence. In fact, if you look to the right of this page you will find links to Empirical Legal Studies, the Social Science Research Network, etc. The problem is that the studies that show no evidence of a deterrent effect are ignored and the ones that do, even if they are wrong or blatant lies, are publicly lauded as the truth.
"Also, no credible psychologist will ever say that a child sex offender is ever "cured" by treatment...controlled yes, cured no!"
Is there a difference? Also, by that implied logic, you are a child molester who's just never acted out. Should we lock you up if you ever speak to a child for fear you're trying to abuse them? Please, defend yourself against such an accusation.
"What we do know, is that for 10 years, Mr Hughes will not be having sex with underage children, so children are safer for that time period."
How much safer? I know you'll probably respond with the classic ignorant rant "Any amount of safety FOR THE CHILDREN is worth it", but really, how much safer? Ten years of someone's life safer? For this crime, police stings outnumber actual cases more than 5 to 1. Name any other crime where that's applicable. Even prostitution stings and narcotics have nowhere near that ratio and we have entire sections of our police forces dedicated to it. This is a rare crime, hyped up by moral panic and 24 hour pundits to the point where everyone is staring down their ethernet cables trying to catch a glimpse of the boogieman.
The leading causes of death among children are motor vehicle accidents, cancer, drowning, and birth defects. You'd get a much better ROI by banning cars and swimming pools than by imprisoning this guy for a decade. Of course, people care about your car and swimming pool more than other people, especially ones that are different, so I guess we're stuck with the current system.
"Finally, if you think you have total control over who your kids are talking to on the internet, well, you are a bit naive. I am not saying you are a bad parent, I am saying that realistically, it's impossible to know what your kids are doing 24/7...IMPOSSIBLE!"
Wow. Like so many parents these days you fail to realize that if you take the time to teach your children to think for themselves, you don't have to do the thinking for them. You don't need internet monitoring software or government agencies patrolling the web, you need to have a frank and honest discussion with your children on the dangers of real life. Yes, I know, talking to your kids is icky, and talking to them about sex even more so, but if you don't, Mr. Hughes and Friends will be more than happy to.
Posted by: NickS - student | Jan 25, 2011 10:23:52 AM
anon: What strikes me as "a bit naive" is your apparent view that Mr. Hughes is radically different and radically more dangerous than many 20-something men who would be willing and perhaps eager to hook up with a seemingly willing and eager 14-year-old girl seeking in a sexual encounter. Perhaps you are willing and eager to spend tax dollars locking up for a decade many of these 20-something men in an attempt to keep 14-year-olds from having any sexual encounters with older men (and maybe you also want to lock up lots of male teenagers, too, who surely also would like to have sexual encounters with any willing/eager 14-year-old girl). In my view, the costs of such an effort would greatly outweigh the benefits, especially given the likelihood that these folks as 30-somethings upon their release may be even more desperate to prey on young girls.
The key issue here is not whether Mr. Hughes has committed a crime and should be punished (though some commentors here may even want to debate this point). The issue is whether a 10-year-prison-term for Mr. Hughes is a good use of resources to make society safer. I remain concerned that you (and many others) so readily want to imprison for a decade first and think about the real consequences later (if at all) rather than the other way around.
Posted by: Doug B. | Jan 25, 2011 10:45:20 AM
I wonder if there is any actual data on how many underage girls are actually lured into sex with adults via the internet. I would hazard that not many are.
I would even hazard a guess that there are vastly more vice cops on the internet entrapping adult men than teenage girls on the internet actually being lured by adult men.
It would seem vastly easier for both the girls and the adult predators to do most of the hunting outside the internet at fast food restaurants and at the mall. In fact, I would imagine that is where most of the predation on underage girls actually occurs. Why is there no hue and cry to stop predators at the mall and fast food restaurants?
Posted by: Jardinero1 | Jan 25, 2011 11:27:35 AM
Mindlessly long stretches in prison...the panacea of choice in our fear-addled society.
The truly interesting statistic here (assuming it's accurate)is the 5:1 sting-to-reported-actual-episode ratio. Sounds about right for a budding police state. That these dangle-amorous-teenagers-in-front-of-horny-men stings survive entrapment challenges is yet another indication of just how far down the police-state road we've traveled.
You can't blame self-serving pols, prosecutors, cops and media outlets for grabbing for the attention these stings generate...and the favor they curry among folks such as anon. It's what they've always done. The difference now is that the system's brakes (the judiciary) no longer work to keep things from getting out of control.
Of course lots of Americans zealously agree with the anons of the world...right up to the moment they discover one of their own 24-year-old children succumbed to powerful temptations concocted by their own government.
Posted by: John K | Jan 25, 2011 12:08:11 PM
Anon, how do you explain/justify this? Could slouching toward the police state, in the sense of the criminal justice system becoming the panacea for every ill will, be partly responsible?
Click the image for details.
Posted by: George | Jan 25, 2011 1:12:30 PM
It is less an issue with any specific age of consent. It is an issue with fictitious laws, with fictitious characters impacting on the sentencing of real people. That faith based law drafting is not allowed in our secular nation. You may not have physical acts on defendants from fictitious doctrines. If witch craft exists and is a big problem, let the lawyer prove it even exists first. That age of consent is as fictitious as any allegation of witch craft.
Posted by: Supremacy Claus | Jan 25, 2011 2:53:54 PM
The extreme sentence for a crime against a fictitious victim, using a fictitious age of consent, represents a hate crime itself. It values the vaginal integrity of a female, even a fictitious one, above the time of a potentially productive male, and to an unseemly extreme. This has some similarity to the death penalty for killing a rabbit on the King's lands or for the lynching of a black boy for whistling at a piece of white trash female walking by. This black boy deserved to be punished for his awful taste in women, but not lynched.
This sentence and the off the mark appellate arguments are the work of vile feminist lawyer hate, and the collusion of their male running dogs. There is no recourse, the appellate court is saying. This completely justifies direct actions by male protective associations against these hate groups.
Posted by: Supremacy Claus | Jan 25, 2011 9:59:14 PM
Senator Charles Schumer of New York has prosposed new legislation that would make it impossible for anyone convicted of a sex offense to work in a location or at a facility where they might have access to children. Broadly interpreted, the act would prohibit a registrant from working in food service, at a gasoline station, at a retail shop, or in any public place. The act also creates an anonymous reporting system to permit folks to report violations of the law without fear that their identity could become known. (Stazi)
The legislation is called the "Preventing Sex Offenders Access to Children in Our Communities Act of 2010." It is a proposed amendment to the sex offender registration section of the Adam Walsh Act. (hate legislation)
Charles Schummer is Jewish if I am not mistaken. He learned quite a bit from Joseph Goebbels but does not care like other NY politicians Spitzer, et al.
Borrowed from Norm Pattis blog.
Where and when will this madness end? O yeah, never. A police state already exists.
Posted by: albeed | Jan 25, 2011 11:29:25 PM
I'm no legal scholar, but please tell me there is legal grounds for that to be found unconstitutional.
Posted by: Questions Authority | Jan 25, 2011 11:35:04 PM
personaly no matter what the judges said...i think it was entrapment. For all we know both individual were in an ADULT chat room where one little nazi was pretending to be 14....so he might never have do anything not being egged on by the cop looking for a conviction...... if the same thing was done in ANY other cime it WOULD be considered entrapment.
as for sir nazi chargles schulmer i think he should be a DEAD MAN and that any one on the sex offender registry has becasue of his actions and what illegal actions he's trying now has every LEGAL Right to kill him any way and any where they can.
Since last time i looked under our CONSTUTION they have the same right to "life, liberty and the persuit of happiness" EVERYTHING that will be densied under this little nazi law if passed.
Posted by: rodsmith | Jan 26, 2011 1:43:09 AM
Thank you very much for keeping me up to date.
Posted by: Health Blog | Jan 26, 2011 7:11:36 AM
Jurisprudentialists like to discuss the case in which a man tries to steal an umbrella from an umbrella rack but unbeknownst to him, he snatches his own umbrella! He is not even guilty of trying to steal somebody else's umbrella since there is no "somebody else."
If you, Mr. Berman, have described the present case accurately, we have a similar situation. Hughes could not possibly be guilty of attempting to entice a minor to engage in a criminal sexual act because there was no minor involved. He approached "the wrong umbrella" so to speak. Whether Hughes was entrapped or not is therefore irrelevant. As for Mr. Berman's absurd remark that he does not worry about "stupid losers" like Hughes but only wonders whether the law in question is an effective deterrent, this shows remarkable density and callousness in the light of the fact that he says "the Hughes opinion does not discuss how old the defendant is or whether he presents a threat to society beyond his misguided interest in hooking up with underage girls." This is a true double whammy because so much does in fact depend on the defendant's age AND because many persons at least as smart as Berman question the appropriate age for calling a female a minor for purposes of sexual offenses. Among them is a certain Ruth Ginsburg.
Posted by: Sidney Gendin | Jan 26, 2011 7:28:56 AM
Oh, yes, I don't know why it matters to you other than idle curiosity but I am professor emeritus, philosophy of law, Eastern Michigan University. Sorry, I did not include that in the initial comment but by now I think you know me.
Posted by: Sidney Gendin | Jan 26, 2011 7:32:40 AM
Prof. Gendin: The sole philosophy of law is lawyer rent seeking. The rest is masking ideology and fast talking bs. Your course can be taught in 5 minutes.
Do you ever address the church based, supernatural doctrines at the core of American law, and their illegality in our secular nation? Do you review the technical, Scholasticist meaning of the central word of the law, reasonable? It means in accordance with the New Testament, and the reasonable person is code for Jesus. No lawyer knows that because Western Civ 101 has been erased by the cult indoctrination of law school.
Posted by: Supremacy Claus | Jan 26, 2011 8:16:05 AM
Though I understand your concerns about Hughes' prosecution, I do not understand you criticism of my comments. I DO worry about Hughes and other adults (both young and old) cruising for young kids seeking sex (both on the internet and in phsyical space), and I would like this potentially harmful behavior to be deterred. That said, I also worry that a 10-year prison terms for Hughes may not achieve more marginal deterrence than a shorter sentence. I do not understand what is dense or callous about this consequentialist focus to Hughes' behavior and its punishment.
Posted by: Doug B. | Jan 26, 2011 10:32:52 AM
Prof. Gendin is concerned about the absence of a crime, and then a severe punishment anyway. That makes the lawyers look crazy, and not just stupid, delusional, like Dominican witch hunters. He mentions the mistaken theft of an umbrella that turns out to belong to the defendant, anyway. There would be intent to steal, but no actus reus. No one, except civilians, seems to notice the self-evident, the absence of an actus reus, in this case. Punishment would be to deter an intent, a thought.
Isn't a synonym for fictitious, "lying"? Shouldn't the actus reus of a crime cause a harm, or was a law enacted of strict liability for intent alone? Should a fictitious crime such as witch craft be allowed to be enacted to deter various medical plagues, economic downturns, and crop failures? You focus on the low intelligence of the defendant. Why is the low intelligence of the lawyer profession, all the way up to the appellate division, not a more important subject?
You do not specify. Are you speaking of specific deterrence or general deterrence? Is it fair to punish a defendant to prevent the future crimes of unknown persons, i.e. punish the person for the crimes of another, that has not yet happened (again, lawyer fiction)? If you are speaking of specific deterrence, then 10 years is really incapacitation.
What if he aligns with other sex predators in prison and learns highly "intelligent" methods of trolling for sex victims, emerging a sophisticated, unfindable serial rapist? There are hundreds of such people out there enjoying themselves with near total immunity from the lawyer. Should the intelligent lawyers who gave him that education at tax payer expense be held accountable for their carelessness, in any way?
Posted by: Supremacy Claus | Jan 26, 2011 11:29:57 AM
well doug i have a simple way to protect kids....KEEP EM OFF THE INTERNET when not supervised. Keep them OUT of ADULT CHAT ROOMS. it's a NO BRAINER....which is probably why the idiots in our govt DONT' GET IT!
Posted by: rodsmith | Jan 26, 2011 3:46:33 PM