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May 17, 2011

Judge Weinstein's final order finding Eighth Amendment prohibits 5-year minimum term for young child porn offender

In March in this post, I reported on Judge Jack Weinstein's "Tentative Draft for Discussion Purposes" in United States v. C.R., in which Judge Weinstein suggesting a 30-month sentence was appropriate for a young child porn offender after deciding that application of the statutory five-year mandatory minimum would be constitutionally problematic.  I have learned from a helpful reader that Judge Weinstein has now filed his final opinion in C.R. in which he decides that a five-year mandatory minimum prison term as applied to this defendant violates the Eighth Amendment's prohibition against cruel and unusual punishment.  I have the full opinion available for download below, and here is just some of many notable passages from the very long opinion (which covers a lot more than just the constitutional issues discussed below):

The law described in this section, as well as the science and particulars of defendant‘s background, leads to the conclusion that, as applied to this defendant, a five-year term of imprisonment would be cruel and unusual.  Requiring five-years of incarceration, most of it without effective treatment, would constitute a violation of the Constitution. 

Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons.  A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age.

Courts have recognized these developmental factors in cases involving teenagers and child pornography. Interest in lewd images of minors by one who is emotionally a minor himself does not manifest the same kind of sexual perversion as would a mature adult‘s focus on the same pictures.  In United States v. Stern, 590 F. Supp. 2d 945, 953 (N.D. Ohio 2008) the district court emphasized the peer-level nature of the sexual interest when imposing a sentence far below the guideline range for a college student who had begun viewing child pornography at age fourteen.  In addition to citing the scientific literature on "the unformed nature of the adolescent brain," id. at 953 n.6, it recognized that "the 14-year-old is acting on normal impulses in an unacceptable manner (and may well be unaware of the impact of his crime), whereas the forty-year-old is acting on deviant impulses and is expected to understand the terror that this crime inflicts upon its victims." Id....

 A five-year minimum sentence as applied to this defendant serves no legitimate penological goal.  "A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense" and therefore, unconstitutional under the Eighth Amendment." Graham, 130 S. Ct. at 2028.  Neither "retribution," "deterrence," nor "rehabilitation," id. at 2028-2029, justifies a five-year mandated prison sentence for an adolescent, plus what could constitute lifelong strict supervised release. Excessive and unnecessary imposition of suffering and destruction of opportunity for a constructive life as a youngster constitutes cruel and unusual punishment. See David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1692-93 (2010) (discussing relationship between suffering and punishment and arguing that "excessive suffering requires remediation").

One the one hand, treatment and supervision within the community are necessary for C.R. to mature into a responsible, productive, law-abiding individual.  Requiring the defendant to spend the formative years of his young adulthood in a sex offender penal treatment unit, on the other hand, presents significant risks.  Hr‘g Tr. 216, Jan. 26, 2011 (Testimony of Dr. Kaplan) ("He could spend three or five-years fantasizing about 12-year-old boys and being reinforced by pedophiles . . . and come out with more of an interest in young boys.").  While the treatment program at FMC Devens will provide the defendant an opportunity for focused therapy, a sentence of five years in such an environment for an immature and impressionable defendant is counterproductive.

Download US-v-CR Weinstein Sentencing_Memorandum (FINAL)

May 17, 2011 at 09:40 PM | Permalink

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Comments

MY GOD a judge with a brain....they will kill him!

Posted by: rodsmith | May 18, 2011 12:32:52 AM

Defendant was nineteen years old at the time of the offense. He started using computers to view this material when he was fifteen. OK, so he wasn't really a minor. So Weinstein declares it unconstitutional to sentence a "young" adult offender to a mandatory minimum because....??? He's plainly substituting his OPINION over that of the legislative branch. As any dogood liberal judge would. This is going to be easily reversed by Appelas court. Come on be realistic. We have a Supreme court who used the 18 yr age as a line when it comes to imposing the death penalty. So now Judge W redefines Adult to mean 21? If he's not reponsible at 19 at what age is he/she? Cruel and unusal arguement is going nowhere fast...just ask the thousands already sentenced to mandatory minimums...there goes the unusual argument. Anyone giving/taking odds this proclamtion will stand?

Posted by: DeanO | May 19, 2011 9:22:45 AM

Evidently a judge that understands a 19 yr. old does not have the mental maturity level of a 40 yr. old and should thus be evaluated accordingly in cases involving the viewing of CP. Now if only the rest of the judicial system including those passing these laws, entrapping and prosecuting barely legal defendants charged in these cases would revisit and stop perpetuating the same boneheaded approaches.

Posted by: james | May 19, 2011 1:06:09 PM

A 400 page opinion. Reminds me of one of my college professors who, when asked how long a paper should be, would reply, "like a woman's skirt, long enough to cover, short enough to be interesting."

Posted by: anon | May 19, 2011 6:37:36 PM

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