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July 11, 2011

Two notable and important child porn sentencing rulings from the Ninth Circuit

The Ninth Circuit today handed down a bunch of criminal law opinions, including two dealing with oft-occurring and important federal child porn sentencing issues.  Here are links and the basics from the start of the opinions, which were issued by two distinct panels:

US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011) (available here):

Joshua Osmun Kennedy was convicted by a jury of possessing and transporting child pornography.  He appeals his conviction, his sentence, and the district court’s order directing him to pay $65,000 in restitution to two victims.  We affirm Kennedy’s conviction and sentence.  Because the government failed to carry its burden of proving that Kennedy’s offense conduct proximately caused the losses incurred by the victims, we vacate the restitution order.

US v. Quinzon, No 10-50240 (9th Cir. July 11, 2011) (available here):

Pio James Quinzon was convicted of possession of child pornography. He now appeals a judgment that includes, as a condition of supervised release, a requirement that monitoring technology be installed on his computer-related devices.

The Kennedy ruling appears to be the most notable of this pair because, as it explains, the child porn restitution matter concerns a "difficult issue of statutory interpretation [that] has been considered, but not satisfactorily resolved, by several... circuits. See United States v. Monzel, ___ F.3d ___, 2011 WL 1466365 (D.C. Cir. 2011); In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011); United States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011).  (I hope to have a separate post on this issue and the  Kennedy ruling once I have time to consume it fully.)

July 11, 2011 at 06:17 PM | Permalink

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Comments

I do not excuse sex offenses act sympathetic to people who hurt children. That said, restitution exacted from viewers of pornography seems to miss the point. In US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011), cited above, the imposition of restitution requires at the least a proximal causation of losses incurred by the victim(s) depicted in the images he consumed and transmitted.

It is my view, and studies show, that victims of child sexual abuse suffer life-long damage because of the trauma caused by their abuser. While these wounds may be re-opened when a victim learns that their images were consumed by a third party offender, I fail to see the logical progression that shows how this offender caused measurable losses or damages not pre-existing.

If possible, I believe the best solution to the restitution issue would differ. If the original abuser were charged restitution of $X,XXX for every person convicted of viewing images of the victims whom they originally assaulted and uploaded onto the internet, the punishment exacted would have a much greater deterring effect to actual abusers, and the victims would be satisfied by restitution to a better extent.

I make no defense of viewers of child pornography. However, these consumers and traders are not the perpetrators of the child sexual abuse depicted in the files they possess. It may be a fringe belief, but molesting a child, then capturing and uploading the images of these horrendous acts is a far worse crime than simply viewing such files. Why, then, are the consumers often punished to a FAR greater extent than the originators themselves? (See Quinzon above: 84 Months incarcerated followed by 30 Years of Supervision)

Exact restitution from the original abusers. Make the original abusers split the incarceration time with the consumers of their depictions of abuse. Wouldn't this make more sense? I realize that this isn't so much possible as abusers are charged primarily within state law, and child pornography viewers are charged increasingly as federal crimes (like the cases here), so these ideas cross jurisdictional boundaries. However, hammering the easily caught/prosecuted pornography offender shows the laziness of prosecutors, and reveals the fact that convictions and sentence-lengths are more important to the DOJ than actually preventing these crimes in the first place.

I openly invite responses to my ideas here.

Posted by: Eric Matthews | Jul 12, 2011 11:21:24 AM

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