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July 14, 2011

Fascinating (and Posnerian classic) opinion on diminished capacity, child porn, and sentencing theory

Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011) (available here).  Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to exceprt.  So, here is just the very start of the opinion along with just one of many interesting passages (with cites removed) to whet everyone's appetite for the whole opinion:

The defendant pleaded guilty to federal crimes of transporting, receiving, and possessing child pornography and was sentenced to 360 months in prison. The guidelines sentencing range was 360 months to life; the statutory minimum sentence was 180 months; he was 44 years old when sentenced.  His appeal challenges his sentence on several grounds, of which the one most emphasized by defense counsel is that the district court improperly failed to consider her argument that the defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower sentence....

Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure.  The diminution makes a defendant more likely to repeat his crime when he is released from prison.  That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire.  Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist.  One of the defendant’s experts opined that the defendant’s ability to resist could be strengthened substantially with medication and therapy.  But both defense experts believed, and defense counsel argued, that he wouldn’t get proper treatment in prison.  That is very damaging to the argument that he won’t recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.

From a “just deserts” standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one.  The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.

How to choose?  The sentencing guidelines do not embody a coherent penal philosophy. “The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.”  Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?,” 27 Am. Crim. L. Rev. 367, 371 (1989).  In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so — why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism — is not explained.  In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.

July 14, 2011 at 03:40 PM | Permalink

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This line really, really stuck out: "We need evidence-driven law just as we need evidence driven medicine." He proceeds to cite two pages worth of studies.

Judge Posner seems to have criticized counsel for *not* looking at the literature.


The psychiatrist mentioned none of the relevant scientific literature in assessing the risk of recidivism, see United States v. McIlrath, 512 F.3d 421, 424 (7th Cir. 2008), and defense counsel did not suggest that the defendant might be civilly committed, as a continuing menace to society, after completion of his prison term.

Posted by: Josh Blackman | Jul 14, 2011 4:12:49 PM

"[The sentencing judge] can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash."

Seldom has the irrationality of luck-of-the-draw, anything-goes sentencing been put more succinctly.

Let's just admit it -- this is flat out helter-skelter. Bring back mandatory guidelines.

Posted by: Bill Otis | Jul 14, 2011 4:55:03 PM

When considering guidelines, the very connotation of the word "guidelines" lends itself to an advisory nature. Mandatory is just that: mandatory. While I understand the viewpoint of prosecutors like the esteemed Bill Otis above when arguing against sentence disparities per 18 U.S.C. §3553(a)(6), I strongly disagree with him that this case makes poignant the argument supporting a need for mandatory guidelines (I hate that oxymoron).

Judge Posner visits the ethical dilemma he faces when dealing with a diminished capacity argument in favor of a downward variance or departure in sentencing. However, allowing a judge to use his own judgement is the foundation for the job itself. Eliminating his ability to do so makes a judge a simple sentence dispenser, according to a narrow ranged already calculated in a Pre-Sentence Report.

There are arguments for and against using diminished capacity as a mitigating AND enhancing factor at sentencing. I prefer to let a judge use his judgement in these cases rather than leave the sentence to prosecutorial discretion (in choosing which statutes to use in indictments) when judges are bound by mandatory sentences.

Posted by: Eric Matthews | Jul 14, 2011 6:53:04 PM

Eric Matthews --

"I prefer to let a judge use his judgement in these cases rather than leave the sentence to prosecutorial discretion (in choosing which statutes to use in indictments) when judges are bound by mandatory sentences."

Under the Constitution, the executive branch has exclusive charging authority, and the prosecutor is an officer of the executive branch. If the defendant's conduct fits a statute with a MM, what's wrong with the prosecutor's indicting under that statute? The defense won't like it, sure, but the question is, what's wrong with it, either morally or legally?

The problem with letting the judge use his judgment in the largely unrestricted manner you seem to suggest is easy to see. For the reasons Posner notes, Judge A will see diminished capacity as aggravating, while Judge B across the hall will see it as mitigating. So whether the defendant gets his sentence jacked up or jacked down will depend strictly on the luck of the draw.

A certain degree of discretion is unavoidable, and desirable, in the administration of justice. But when it gets to be a flat-out lottery, it has gone too far. When you have a lottery, you no longer have law.

Posted by: Bill Otis | Jul 14, 2011 8:27:42 PM

Bill Otis-
I do understand the need to keep sentences from being too disparate between defendants with similar circumstances. I believe that judges are grown ups and entrusted to do the job they were appointed to do: dispense judgement. I agree that the Constitution gives prosecutors, as a member of the executive branch, the power to charge and indict. Judges, however, are members of the judicial branch and are responsible for sentencing in the federal system.

"If the defendant's conduct fits a statute with a MM, what's wrong with the prosecutor's indicting under that statute? The defense won't like it, sure, but the question is, what's wrong with it, either morally or legally?"

I made no mention of mandatory minimums. I reacted to your call to reinstate the pre-Booker mandatory nature of the sentencing guidelines. When the sentencing guidelines are mandatory, sentences are ultimately dictated by prosecutors when the decision is made by said prosecutors based on which statute is chosen for indictment. You misconstrue my words when defending mandatory minimums, when my complaint was regarding mandatory guidelines.

I hope you don't believe that sentencing regressed into the Wild West when the guidelines became advisory. You know much better than I that judges still must weigh each factor from 18 U.S.C. §3553 when determining an appropriate sentence, which includes not deviating too wildly from similar cases (especially those within their District/Circuit). There may be difference between judges in cases like the one in this post, but the alternative is too lopsided for a logical, objective, individualized justice system.

Mandatory minimums still exist, and while I despise them, I did not dispute their use. My contention is with the mandatory guidelines you regard with fond nostalgia. A prosecutor is more than welcome to use the tools at his or her disposal with no legal dilemma. However, the separation of powers between executive and judicial branches is breached if a judge cannot use his own discretion when he disagrees with the severity (or lack thereof) dictated by the almighty guidelines.

Finally, a personal note. Two factors collide which I believe bias the system against a defendant in the existence of mandatory guidelines. First, prosecutors are congratulated and promoted based on conviction rates and sentences lengths (aggregate total or average). When these factors contribute to career climbing, and a judge cannot effectively mitigate what a defendant is charged with because the U.S.S.G. tells him what to do, there is no incentive other than personal conscience to reign in an ambitious or overzealous prosecutor.

Posted by: Eric Matthews | Jul 14, 2011 10:46:22 PM

Ich mag sehr viel Ihre Art der Präsentation. Wir freuen uns auf mehr lesen von dir.
Chanel Flap Tasche

Posted by: modewelt | Jul 15, 2011 2:14:37 AM

While the discussion about diminished capacity is interesting, the most striking thing about this opinion is the note that this icky perv had previously served one year in prison for creating child pornography and repeatedly molesting a child over a four year period. So, Mr. Garthus provides a very stark example of how icky pervs were for years undersentenced for molesting children and how the legislative reaction is to overpunish possession of child pornography to the point where mere possession of child pornography often can result in a harsher statutory minimum sentence than many contact offenses involving real children. Unfortunately, Judge Posner did not really address that aspect of this case - and its implications for the diminished capacity argument - which is rather surprising for a law and economics guy. So I will attempt to address those issues myself.

I would hope that everyone would agree that possession of previously existing images is a less serious crime that creates less harm to society than creation of child pornography or molesting a child repeatedly over a four year period. Possession of previously existing child pornography also would appear to be a market substitute for molesting or raping a child. Because assaulting a real child is the more serious crime which entails greater societial cost, it should be more seriously punished. Yet, we often see cases where states do not prosecute icky pervs for contact offenses and turn the prosecution over to the federal government because the icky perv - okay, I doubt that Posner would use the phrase icky perv, but I'm hoping it catches on as a term of art ;) - will get more time on child pron possession charges then they do for abusing an actual child. This may indicate that the legal system is broken in these cases because while Mr. Garthus may be appropriately punished with a 30 year sentence, he is effectively being punsihed for the prior crime because of the increase of the available sentence and sentencing guidelines for possessors of child pronography who have also committed contact offenses against children. This leads to all sorts of issues. The first is that in the past and often continuing today, contact offenses against children and often forceable sex crimes against adults have been dramatically underpunished. Mr. Garthus's case illustrates that because one year for the repeated molestation of a girl who was 10 when the assaults started and filming himself molesting her when she was 14 is ludicrous. However, it appers from the record that Mr. Garthus was only charged with a single count of creation of child pornography involving a teenager and the case occurred prior to the explosion of child pronography on the internet. The second is that punishment for child pron possession offenses which is based on the perceived risk of pedophiles to real children is often based on a fear of what the pedophile might do, and not the actual offense. The third issue is that the girl that Mr. Garthus abused was a relative - that illustrates that icky pervs often abuse relatives due to opportunity. However, often children are relunctant to testify against relatives which often results in favorable deals being reached and lowers punishments for what are extrodinarry serious crimes. Naturally, there are also double jeopardy issues - while the previous punishment was horrifyingly inadequate, Mr. Garthus has already been punished for the abuse he inflicted on a girl he was related to. Thus, Mr. Garthus can serve as the poster icky perv for icky perv sentencing issues. While his crime was possession of child pornography, he like all icky perv defendants is really being sentenced for being a pedophile who is a risk to children. However, Mr. Garthus's primary argument is that he should get a lower sentence due to diminished capacity to avoid crime.

As, Mr. Garthus acknowledges, he is an pedophile who has a major panty fetish. Thus, he has two DSM-IV recognized sexual conditions, pedophila and fetishism. He is not intellectually disabled, but has an IQ of 83 which is significantly below average. Mr. Garthus argues that these conditions provide for a diminished capacity to avoid sexual offenses against children. Mr. Garthus implicitly argues that because he is an icky perv, viewing photos of children being raped and abused is a subsitute for him going out and raping and abusing children himself. Naturally, that argument is not going to win him a lot of friends - effectively Mr. Garthus is saying that he should get less time precisely because he is so dangerous. However, the fact that Mr. Garthus sought out the easier less harmful alternative of child pron rather than the more harmful alternative of abusing a real child provides an interesting corrundum. While its entirely possible that Mr. Garthus merely sought out child pornography because it is easier to obtain than to find a real child - presumably given his prior record no other relatives or neighbors will let him near their daughters and he's legally prohibited from jobs or volunteer work that would put him in proximinity to children, a judge would have to take into account the possibility that Mr. Garthus may have had sufficient capacity to avoid the more harmful alternative of attacking a real child. That effectively leads to the point that while the defendant may have diminished capacity to avoid sex crimes against children, he has sufficient capacity to avoid the more serious crime of molesting a real child. Either way, Mr. Garthus poses a threat to children - however, Mr. Garthus is saying that he should be given a lower sentence and civilly committed rather than being sent to prison for a long sentence. Realistically there is not much difference - Mr. Garthus is likely to not walk the streets as a free man ever again. However, it makes a big difference Constitutionally. Civil commitment of sexually violent predators began because state legislatures started noticing that for years sexual offenses including sexual offenses against children were dramatically underpunished and dangerous repeat offenders were going to be released. States cannot Constitutionally administer additional punishment to the previously convicted without them committing new crimes, but they can civilly commit a dangerous person. While the Supreme Court has upheld the civil detention of sexually violent predators, it is much more honest to give a dangerous sexual predator like Mr. Garthus a longer sentence when they commit a new crime. Unlike the sexually violent predators who are civilly commited, Mr. Garthus did commit a new crime against children - even though it is less serious than a forceable contact offense against children, it is still a serious crime which Congress has passed a statutory minimum of 15 years in prison and the sentencing guidelines call for a sentence of 30 years to life. Because diminished capacity in this case proves nothing either way other than that Mr. Garthus is dangerous, the guidelines sentence of 30 years in prison appears to be appropriate. While its possible that a lower sentence for Mr. Garthus and civil commitment and treatment would result in him being able to be safely released earlier, there is no guarantee that Mr. Garthus will be civilly commited as a sexually violent predator. Yes, despite Mr. Garthus being a dangerous person who threatens the safety of any child around him by his own admission, 30 years appears to be a riduculously harsh sentence. However, that determination for appropriate sentencing belongs in the hands of Congress. Society has decided that because icky pervs pose a danger to children they should get harsh sentences and it would be perverse in the extreme for a judge to ignore the decision made by Congress and the Sentencing Commission, even if foolhardy, on the grounds that Mr. Garthus poses an extra danger to children due to diminished capacity.

[judge for today] ginny :)

addenum: Seriously, your argument is that you are so dangerous that you deserve a lower sentence? Mr. Garthus, try spending less time thinking about what color of panties I am wearing and more time thinking of a coherent argument.

Posted by: virginia | Jul 15, 2011 6:44:28 AM

Eric Matthews --

Your response does not address, much less rebut, my observation that when we can have diminished capacity used to jack up the sentence in one courtroom, and jack it down in the courtroom across the hall, that is just randomness, and randomness isn't law. (It isn't justice either). To say that we employ judges to judge is a truism, not an answer. The whole problem with irrational disparity stems from the fact that judges so employed vary from one another for no reason other than ideology or temperament. This is fair neither to defendants nor the government.

"...the separation of powers between executive and judicial branches is breached if a judge cannot use his own discretion when he disagrees with the severity (or lack thereof) dictated by the almighty guidelines."

But the mandatory guidelines system you condemn did not forbid sentencing outside the guidelines range, and such sentencing (via departures) happened all the time. The SRA imposed only the quite modest, and sensible, requirement that the judge identify some relevant factor about the case that the Commission had failed adequately to consider.

"...prosecutors are congratulated and promoted based on conviction rates and sentences lengths (aggregate total or average)."

I was a prosecutor for almost 20 years, and not only were my colleagues and I not promoted (or even rated) on sentence length, I have never heard of any such thing in any of the 93 federal judicial districts. What is the documentation for your claim?

Posted by: Bill Otis | Jul 15, 2011 9:37:20 AM

Mr. Otis -

Your argument here regarding diminished capacity sentencing argues only that different judges may give different sentences. This happens all the time with or without mandatory guidelines. The advisory guidelines give judges a ballpark sentence range while §3583(a)(6) tells him not to stray too far from those guidelines without sound reason. Those two reason do address and rebut your assertion that diminished capacity defendants simply enter a lottery when judges are chosen. Statute and policy address this.

"But the mandatory guidelines system you condemn did not forbid sentencing outside the guidelines range..."

The Supreme Court heard and ruled on cases like Booker specifically because the guidelines were considered mandatory. The existence of these rulings suggests a system contrary to your assertion above. Whether this consideration was de facto or de jure made little difference to a defendant appearing before a judge who believed he had no discretion.

Finally, I concede your last point that prosecutor's promotions don't account for aggregate or total sentence lengths, but again you didn't read my entire quote. "...congratulated and promoted..." postulated two scenarios under which prosecutors, and the offices they serve, view their work. Did you never heard a single former colleague beam from an exceptional sentence length, nor hear congratulations for it otherwise? I would highly doubt it. I address here not only the policy but the culture of prosecutorial conduct in the United States Attorney's office.

Posted by: Eric Matthews | Jul 15, 2011 1:11:42 PM

Bill,

I'm curious if your cry to bring back mandatory "guidelines" is an appeal to Congress?

Congress is certainly able to establish a sentencing system in which all enhancing sentencing facts are found by a jury beyond a reasonable doubt. This approach is certainly possible as soon as Congress so chooses, and it would have the benefit (unlike the 1984 Sentencing Reform Act) of being constitutional. Or, do you want the judiciary to create some other system?

Personally, I would have no problem with a constitutional, mandatory sentencing regime. It is kind of pathetic, however, that tens of thousands of Americans were sentenced for more than twenty years under an unconstitutional system. I hope we never go back to that.

Mark Pickrell

Posted by: Mark Pickrell | Jul 15, 2011 2:46:36 PM

Eric Matthews --

"Your argument here regarding diminished capacity sentencing argues only that different judges may give different sentences."

Nope. It's more specific than that. The argument is that giving different sentences BASED ON THE SAME FACTOR is unequal treatment before the law. You say that this happens "all the time" anyway, but that is incorrect. It does not happen all the time. It happens some of the time, and it is more likely to happen if judges are unconstrained by rules. But for however that may be, unequal treatment before the law is a bad thing, and it should be corrected to the extent possible rather than dismissed.

"The Supreme Court heard and ruled on cases like Booker specifically because the guidelines were considered mandatory."

Nope. It heard and ruled on Booker and Blakely because some judge-imposed sentences were based on factors not found by a jury BRD, as the reasoning of Apprendi was found to require. The stripping away of the mandatory feature in Booker was the remedy, not the cause, of the Court's granting cert.

Your point-blank assertion that prosecutors are promoted based on sentence length was, as you now concede, false. Were you just winging it? It's annoying when someone who has zero experience in a prosecutor's office makes up factual assertions about how things work there, and makes them up for the purpose of painting prosecutors as thugs, trying to earn points for "promotion" by piling it on some hapless meth dealer (or what have you), whether or not he's earned it.

As to your other point about office culture: Yup, when a prosecutor gets a fat sentence for a bad and dangerous person, you better believe there are congratulations all around. Prosecutors react to victory in much the same way as other human beings do. They're happy about it.

Of course defense counsel, also being human, likewise react with happiness to victory. I swear I just saw Casey Anthony's lawyers smiling, hugging and congratulating each other for their victory in avoiding any serious punishment for a person who in all likelihood killed a two year-old. I do not recall your expressing any consternation at their being pleased with this triumph for "justice."

Posted by: Bill Otis | Jul 15, 2011 3:43:10 PM

Mr. Otis -
Before I leave this thread to read up on others, let me clear up one thing. You keep harping on my "point-blank assertion that prosecutors are promoted based on sentence length..." This never happened.

I'll state my point for the THIRD TIME (first in OP, then twice after). I commented on policy and office culture in my statement about conviction rate and sentence length. Both together. While I possibly could have separated those two assertions to avoid it being twisted in context (twice), I never said that prosecutors were promoted based on sentence length.

Here is the original statement: "First, prosecutors are congratulated and promoted based on conviction rates and sentences lengths (aggregate total or average)."

Promotions are based in part on conviction rate. Congratulations, you admit yourself, are given for big sentence length for "a bad and dangerous person." I'll take your word that praise is given after sentencing only bad people. The point remains that people in general (which includes prosecutors) are highly motivated by incentives: in this case the incentives are praise and career progression. I challenge you then: what incentives exist to promote prosecutorial leniency?

See what I did in the last paragraph? I called prosecutors people. Not thugs, brutes, demons, or anything else dehumanizing. So please stop putting inflammatory rhetoric into my words, accusing me of 'winging' my arguments or generally treating my reasoning like it were from a common Blog Troll. Thank you.

Posted by: Eric Matthews | Jul 15, 2011 5:01:30 PM

Eric Matthews --

Words have meanings. You wrote, "...prosecutors are congratulated and promoted based on conviction rates and sentences lengths (aggregate total or average)."

In fact they are not promoted on sentence lengths, period. Saying that they are, or that they are promoted based on sentencing lengths combined with A, B, and C is indeed winging it. It's just not true, and you have produced no factual basis for the claim.

"I challenge you then: what incentives exist to promote prosecutorial leniency?"

I could say, "The same incentives that exist to promote defense lawyers' expecting their clients to own up, quit making excuses and take responsibility." Instead, though, I'll give you a straightforward answer.

Prosecutors willing to cut a break to defendants WHO DESERVE IT do better with judges than guys who swing for a home run every time. They have better reputations in the legal community. They tend to become recognized within the Office as the sort of elder statesman who knows how to hold the balance clear and true. They also have a better shot at becoming a judge.

As an example of a prosecutor willing to cut a break to a defendant who deserved it -- and who almost surely would not have received it without the prosecutor's going to bat for him -- I refer you to counsel for the government in United States v. Brian Ashley Martin, 25 F.3d 211 (4th Cir. 1994), available here: http://ftp.resource.org/courts.gov/c/F3/25/25.F3d.211.93-6702.93-6583.93-6477.html

Posted by: Bill Otis | Jul 15, 2011 6:19:28 PM

Ironic. First, I commend Judge Posner, as someone who may get it. But when the Supremacy advocates for enhanced sentencing for diminished capacity, he is called a troll and shunned. When Judge Posner asserts the self-evident, he gets quoted.

I don't know if Judge Posner is following the miscellaneous ramblings of the Supremacy. I even saw the phrase "rent seeking" in his book on the Economic Analysis of the Law.

What I prefer to think is the stylings of the Supremacy are self-evident to everyone with any common sense, but have been suppressed by the cult indoctrination of law school, and are beyond the understanding of the typical lawyer, except for the very smartest among them, such as Judge Posner.

Posted by: Supremacy Claus | Jul 16, 2011 12:50:02 PM

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