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March 16, 2011

Eleventh Circuit distinguishes downloaders from producers in affirming kiddie porn stat max sentence

The Eleventh Circuit has a notable and, in my view, important discussion of different types of child pornography offenders today in US v Dean, No. 09-16133 (11th Cir. March 16, 2011) (available here), in the course of affirming a 30-year prison term for the producer of child porn.  Here is a segment of the panel decision's discussion:

Dean also relies on a paper by federal public defender Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (Jan. 1, 2009), http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf and cases that have cited it. Dean’s reliance is misplaced.  Stabenow’s paper argues that the current Guidelines for child-pornography offenses are flawed because the severity of sentences entered against the typical downloader of child pornography, who has had no direct connection to the production of the materials or the abuse of children, has increased drastically without any “empirically demonstrated need for consistently tougher sentencing.” Id. at 3. The cases that Dean references as having cited Stabenow’s paper are similarly concerned that the first-time “typical downloader” (as opposed to a “predator” or “active abuser”) may receive too harsh a sentence....

In this case, however, we need not, and expressly do not, address the concerns in, or the rationale of, the Stabenow article or the cited cases. Dean is no mere downloader. He sexually abused his stepdaughter and filmed hundreds of the episodes of abuse to generate pornographic films.  Not one of the sources he cites supports the argument that the Guidelines are too harsh with respect to perpetrators who assault children to produce pornography.  To the contrary, Dean’s stepdaughter has suffered the kind of grave harm described by our en banc Court in Irey.

It may not seem too surprisng or ground-breaking to see a court distinguish "the first-time typical downloader" from "a predator or active abuser" in the context of reviewing the soundness of a child pornography sentence.  However, I cannot recall any other circuit ruling drawing this important distinction and using it so clearly to justify its ruling.  That fact alone does not make Dean a monumental opinion, but it sure does make blogworthy.

March 16, 2011 at 05:59 PM | Permalink

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Comments

The most notable part of the opinion is this, "empirically demonstrated..."

The sole tool of the law is punishment. That is always a procedure on the body, even in the case of fines (taking labor). All laws must be demonstrated to be effective and to have tolerable unintended consequences, or they should be void, not voidable. The idea that elitist, self-dealing, incredibly arrogant, know nothing Ivy indoctrinated lawyers can tell specialists how to run their business without such evidence of effectiveness justifies violent self-help. I advocate an all out boycott of the judge and legislators by all product and service providers. These are internal enemies who should not get the benefits of living in this country. This specialization includes the criminal law, a very difficult profession, with tremendous impact on the health and wealth of the public.

We would be way ahead in the evolution of the law toward empiricism if the lawyer were excluded from all benches, legislative seats, and policy positions by an Amendment. The US lawyer is steeped in supernatural doctrines, unlawful in our secular nation, and has been made idiotic by law school. Worse, the lawyer is in total denial. Address only 2 million of the 20 million crimes. Have most criminals on the street to generate hundreds of crimes a year, each. Then call the justice system the best in the world. Not even a mentally retarded student in Life Skills class, unable to grasp even elementary arithmetic, would be stupid enough to say that, let alone believe it.

Posted by: Supremacy Claus | Mar 17, 2011 7:25:41 AM

I like what you have said,it is really helpful to me,thanks!

Posted by: Big pony | Apr 11, 2011 7:55:07 AM

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