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November 3, 2011

Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn

The lengthy sentences sometimes given to downloaders of child pornography in federal court often are much longer than those handed out for this crime in state courts.  However, as detailed in this local piece from Florida, headlined "East Naples man sentenced to life in prison for child porn," some state sentences for child porn possession are even more extreme than federal law provides:  

An East Naples man was sentenced to life in prison Thursday following his conviction last month in one of the county’s largest child pornography cases.  The sentencing of Daniel Enrique Guevara Vilca, 26, came after a six-person jury found him guilty Oct. 6 on 454 counts of possessing child pornography.  Collier County sheriff’s investigators seized a computer from Guevara Vilca’s Landover Court apartment in January 2010 and found about 300 sexually explicit pictures containing children and 38 hours of taped child pornography.

Guevara Vilca faced more than 300 years in prison. The minimum sentence under a state score sheet was 152 years in prison. Guevara Vilca turned down a 25-year plea agreement before trial....

The sentence is the most severe in county history for a child pornography possession case. In 2009, Naples resident Douglas Deering received a 25-year sentence as part of a plea deal on 197 child pornography possession counts.

This companion piece, headlined "East Naples man's life sentence for child porn too harsh, attorney says," reports that the defendant's attorney will challenge the constitutionality of this sentence on appeal:

His defense lawyer, Lee Hollander, argues that others in Collier County have committed crimes more serious and violent, yet received lesser punishment than Guevara Vilca, who had no prior criminal record....  “People who are actually creating child porn or molesting children are getting lighter sentences than people who are in possession of it,” Hollander said.  “The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute.”

Less sympathetic Thursday was Assistant State Attorney Steve Maresca.  He said it was “offensive” to claim possession of child porn is a nonviolent crime, adding that consumers such as Guevara Vilca keep alive a market for children to be sexually abused.  “I think (the sentence) sends a message that this is a serious crime,” Maresca said. “This is a crime that continues on and on. Those images are there forever, which means some of those children have to deal with it forever.”

[Collier Circuit Judge Fred] Hardt had little choice but to follow state law in putting Guevara Vilca behind bars for life. A sentencing score sheet required a minimum sentence of about 152 years in prison — a far cry from the 25-year plea agreement Guevara Vilca rejected before the trial. The number and severity of the charges allowed Hardt to impose a life sentence under state law.

Hardt reviewed several factors that could have allowed him to depart from the minimum guideline, including the defendant’s mental health history and the constitutionality of the sentence. He found no reason to impose a lighter sentence. “The fact that this court might — and I’m not saying it does — believe that this sentence is disproportionate is not valid grounds for departure,” Hardt said.

Hollander said he plans to appeal the sentence, calling it a cruel and unusual punishment that violates the Eighth Amendment of the Constitution.

The principle of his claim — that a child porn consumer shouldn’t receive a life sentence when child sex abusers often receive lighter punishments — drew debate Thursday from state law professors.

“That argument can be made,” said Bob Dekle, a University of Florida law professor who spent about 15 years prosecuting sex crimes in northern Florida. “How good it is and how persuasive is another question. I don’t find it very persuasive.”...

Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sex offender laws, suggested a life sentence for child pornography possession is excessive.  “I don’t think somebody should get life in prison for possessing child pornography that they didn’t produce,” Lave said.  “I don’t think it should be the same as somebody who commits first-degree murder or a string of violent crimes.  Part of what the justice system needs to do is punish proportionally.”

Hollander said his appeal of the sentence “probably is going to end up in front of the Florida Supreme Court in some shape or form.”

November 3, 2011 at 10:05 PM | Permalink

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"Less sympathetic Thursday was Assistant State Attorney Steve Maresca. He said it was “offensive” to claim possession of child porn is a nonviolent crime, adding that consumers such as Guevara Vilca keep alive a market for children to be sexually abused."

This is the fallacy that no one ever seems to question out loud in court. Possession of child pornography is not a violent crime. The images may depict violence, the production of the images may have involved violence, but possession of the images is not violent. On a computer, the images are simply a collection of bytes on a metal disk that can be combined into an image on an monitor. Viewing them does not actually send out some kind of pain ray and cause physical harm to another person far away. Simply saying it's violent doesn't make it so.

No one can defend the possession of child pornography. But there's no point in making it sound like a worse crime than it already is.

Posted by: C.E. | Nov 3, 2011 11:10:44 PM

That will teach the bastard for actually having a trial! (Remember what those are?)

I also ran across this liberal claptrap:

“Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3. “American punishment is comparatively harsh, comparatively degrading, comparatively slow to show mercy.”James Q. Whitman, Harsh Justice (Oxford Press 2003) paperback ed. at 19. “The current American prison system, is a leviathan unmatched in human history.... with five percent of the world’s population—[it] houses 25 percent of the world’s inmates... We have become progressively more punitive... Despite a sharp national decline in crime, American criminal justice has become crueler and less caring than it has been at any other time in our modern history...”Glenn C. Loury “Why are so many Americans in Prison”(Boston Review 2007)(found at http://bostonreview.net/BR32.4/loury.html)”)

Can you believe what these left wing pinkos in the North actually write. Do they really believe this nonsense? In Texas, we execute them for stuff like this, guilty or not. Long Live the Confederacy!!

Posted by: Bubba from Texas | Nov 3, 2011 11:11:33 PM

"Viewing them does not actually send out some kind of pain ray and cause physical harm to another person far away."

Actually C.E. that not correct. There is an entire body of research that holds that merely looking is itself an act of violence. It's not a new idea but it found it current inspiration in a poem written by Nikki Giovanni in the 1980s.

"like the wind blowing
across a field of wheat
your smile whispers to my inner ear

with the relief of recognition
i bend to your eyes
casually
raping me"

This whole idea has been a constant theme of feminists for a long-time. I've always been somewhat bemused about how eager many conservatives have been to jump into bed with feminists on this topic. They may think they are out saving children but if certain groups had their way half the bubbas in the world would be put in jail for looking at their wife "funny".

Posted by: Daniel | Nov 4, 2011 12:37:47 AM

http://www.psychologytoday.com/blog/vitamin-eye/200907/eye-eye-visual-violence-0

Sorry of the second post. I meant to include this link to give a taste of what I'm talking about.

Posted by: Daniel | Nov 4, 2011 12:42:30 AM

Bubba --

"That will teach the bastard for actually having a trial! (Remember what those are?)."

Translation: The defendant was not just a pervert, he was a dunce too.

Now there's a powerful case for you!

P.S. Yes, some of us do remember what a trial is. It's one of those things you can get any 'ole time by telling the prosecutor that he and his proposed bargain can go to a warm place.

The real reason so many defendants opt for the plea bargain -- as you must know if you ever had a criminal practice -- is that the prosecutor has dumbed down the charges so much, and given away so much of the store, that the deal is irresistable.

Posted by: Bill Otis | Nov 4, 2011 6:47:23 AM

Article: "The principle of his claim — that a child porn consumer shouldn’t receive a life sentence when child sex abusers often receive lighter punishments — drew debate Thursday from state law professors."

me: I would hope that everyone would agree that actually abusing a child is worse than looking at pictures of child abuse. I would hope that anyone, even people who believe that there is harm from transmitting images of abuse, would realize that the original abuse and production of the image is way worse than the mere possession of the image potentially several years after the fact. Anyone who thinks that it is good policy to punish people who merely possess child porn worse or even the same than actual child abusers is delusional.

Article: “That argument can be made,” said Bob Dekle, a University of Florida law professor who spent about 15 years prosecuting sex crimes in northern Florida. “How good it is and how persuasive is another question. I don’t find it very persuasive.”...

me: maybe the next time a convicted icky perv child molester tells his prison psychologist that he thought about using child porn as a substitute for raping the little girl next door, but decided against it because he'd get less - or at least the same - time for the rape, Professor Dekle will feel some responsibility. I doubt it though becasue people like this Professor and the prosecutor quoted above are too interested in getting the easy win to put icky pervs away to realize that by spouting nonsense like this they are actually insulting people who were actually sexually assaulted as children. Trust me, when I say that a statement like this law professor made is actually highly offensive. And again, I'm not sure if the market substitution theory for icky pervs is actually accurate or not - but I'm not willing to risk that real children might be attacked to help prosecutors and legislatures tout their toughness against icky pervs by going after real targets.

ginny :)

Posted by: virginia | Nov 4, 2011 9:53:43 AM

ugh, I managed to totally mangle that last sentence - it should say "going after easy targets rather than stopping real child abusers"

ginny :)

Posted by: virginia | Nov 4, 2011 9:56:41 AM

ginny, it's nice to demonize those who feel that child porn is an outrage and needs to be stamped out.

Posted by: federalist | Nov 4, 2011 11:28:50 AM

"The real reason so many defendants opt for the plea bargain -- as you must know if you ever had a criminal practice -- is that the prosecutor has dumbed down the charges so much, and given away so much of the store, that the deal is irresistable."

The corollary to that is that the statutory penalty for the actual crime is so perversely hideously, severe, given the nature of the crime; that a defendant would be an idiot to take a chance on a jury. Thus, any bogus plea with a lesser penalty, a defendant would be foolish not to agree to; Guevara Vilca's case being a being the foremost example.

Posted by: Jardinero1 | Nov 4, 2011 1:39:55 PM

What if a person were obsessed with viewing bodies of corpses.

And that person's twin was obsessed with viewing "porn" pictures of age 17.92 year males and females; 24 hours per day, excepting timeout for eating and health necessities?

Posted by: JAG | Nov 4, 2011 2:06:38 PM

Under the theory that viewing is as bad as doing, one who possesses a picture of someone committing a murder should be punished every bit as harshly as the murderer. And under federalist's view, anyone who points out the illogic of this is demonizing those who feel that murder is an outrage and needs to be stamped out. Huh?

Posted by: streetlaw | Nov 4, 2011 6:24:12 PM

Funny. The real promoter and generator of horrible, violent porn? This feminist running dog prosecutor. By these sprosecutions, child porn becomes a bigger profit center for international crime syndicates.

What I don't understand?

1) Why defense lawyers do not demand a Daubert hearing on the claim that buying child porn increases its production, when it is the prosecution of child porn that increases the production of horrific, violent scenes, by increasing prices.

2) Why defense lawyers do not move for total e-discovery of the computers of the prosecutor and judge. They are the most likely to have child porn on them because the US government is the biggest buyer, downloader, and subscriber to child porn in the world. The feminist running dog prosecutor can explain to the FBI how those images were part of his job.

3) These prosecutions are price supports for East European crime syndicates. I would like to know if legitimate business front organizations owned by the crime syndicates provide any funding, material support, or other considerations to the election campaigns of these feminist running dog prosecutors and judges.

Posted by: Supremacy Claus | Nov 4, 2011 7:51:26 PM

ginny:)

I usually object to your "icky perv" references but not today.

Note how federalist used the term "stamp out" instead of "providing justice" to your comment.

Well, Congress and the "gubermint" have been doing that for years.

You see, these types of crimes are much easier to prosecute and demonize than the actual harm. We create more lies and dumb down the voting populace. Like the POS AWA!

Loss of individual and constitutional rights only because (my views are justifiable)!

Posted by: albeed | Nov 4, 2011 11:21:27 PM

Proportionality fluctuates with emotion; the family of a victim frequently advocates Draconian sentencing. Troubling to me is secrecy in sensitive prosecutions as well as the strict definition regarding the age of responsibility. As a retired courts observer I've wondered at the disparity of convictions between 18 year-olds and younger; changing morals and reports of younger perpetrators & victims tear the standard from the eighteen-year-old and move it about as public emotion dictates. IMO, a new scaled-responsibility based on relative development is needed: a knowledgeable juvenile could be as responsible as an adult but adult sentencing needs to be diluted for statuary offenses as opposed to criminal and abusive activities. A high school or Junior high school romance ought not to be criminal nor should one suddenly become a criminal by virtue of aging. A hard age statue ought to be a graduated one.

Posted by: Bobertbobert | Nov 5, 2011 6:24:10 AM

I am a former New York County Assistant District Attorney. I read about Vilca case in the Nov. 5 New York Times article. The sentence is a horrendous miscarriage of justice. As the blogger federalist put it, the statutory penalty is perversely hideously, severe, given the nature of the crime. I assume there was trial testimony about the psychology of actually abusing versus viewing pornography. Can anyone here comment on whether that was strong, whether it was largely disallowed by the judge? What will be the arguments on appeal? Is it just as to sentencing (I am not familiar with Fla. law). Can any expert on this blog comment on the chances of a successful appeal? It would be great if an expert in the field of the psychology of pornography would contribute to this blog. Thank you.

Posted by: sumili | Nov 5, 2011 2:41:33 PM

If the viewing of child pornography is a violent crime, then didn't the law enforcement officers who found this stuff on the defendant's computer, and the judge and the jury who had an opportunity to examine the evidence against him engage in a violent crime?

Aren't law enforcement officers who look at child pornography as they attempt to track its creators engaging in a violent crime (because merely looking at such stuff is a violent crime)?

Aren't researchers who view child pornography in an effort to understand the causes and effects of child sexual abuse engaging in a violent crime?

If the viewing of child pornography is a violent crime simply because a crime must be committed in order to view it, then isn't the possession of illegal drugs a violent crime because the production, distribution and sale of such products is a violent endeavor?

I think that you can tell that I don't think that looking at child pornography, as disgusting and vile as it is, is a violent crime. Similarly, I think that looking at pictures of humans having sex with animals is disgusting and vile, and that animals, like children are incapable of giving consent. However, I don't think that looking at pictures of humans having sex with animals is a violent crime. Should people who look at pictures of humans having sex with animals be punished for violating statutes that prohibit animal cruelty?

Posted by: ND | Nov 5, 2011 2:46:24 PM

Since two people brought it up let me address the issue:

"Aren't researchers who view child pornography in an effort to understand the causes and effects of child sexual abuse engaging in a violent crime?"

and

"It would be great if an expert in the field of the psychology of pornography would contribute to this blog."


There are no experts on child porn and psychology. They simply don't exist. At least, there is no professional who would admit to it because the mere possession of child porn by anyone who is not a law enforcement officer is by definition illegal. The whole "but I just have it for research" purpose was settled in a series of court cases back in the late 80s. Child porn remains the only academic subject matter that it is illegal to study.

So those who are looking for official expertise on the subject will find that there isn't any. That's deliberate.

Posted by: Daniel | Nov 5, 2011 3:15:59 PM

"Aren't researchers who view child pornography in an effort to understand the causes and effects of child sexual abuse engaging in a violent crime?"

I once watched a judge at a sentencing tell a defendant that every time he viewed images of child pornography, he harmed the children in those images. He then asked the prosecutor to show him samples of the some of the images the defendant possessed.

Prosecutors are just as bad. If a CP case goes to trial, the defense is usually that the defendant didn't know about the images, or that someone else downloaded them, or whatever. No one denies they are child pornography. But the prosecutors fight like hell to make sure they can show the images to the jury, even if the defendant stipulates they constitute child pornography. Then, at sentencing, the prosecutor will raise the same argument: every time CP is viewed, the children are victimized all over again.

And so it goes.

Posted by: C.A. | Nov 5, 2011 8:04:43 PM

C.A. --

"If a CP case goes to trial, the defense is usually that the defendant didn't know about the images, or that someone else downloaded them."

Could you tell us the percentage of cases in which that is anything other than an outright lie? I'm well aware that it's above zero; the question is how much. Is it 10%? 15%? What?

Posted by: Bill Otis | Nov 5, 2011 9:50:53 PM

Huh? I haven't heard of many trials where the defense was that the images were not child pornography. Not many of these cases go to trial to begin with, but the defense usually goes to knowledge, whether the defendant is the one who downloaded them, etc. In my experience the images are so unbelievably horrendous that no one would try to argue that they do not contain child pornography.

There was one case in Puerto Rico, where the Government charged a defendant with possessing child pornography. At his trial, or maybe some pretrial hearing, the actor in the video came to testify that she was in her 20's when the videos were made, contrary to the testimony of the Government's expert, who concluded she was under the age of 18. I have heard of an appeal where the defendant argued that the Government did not put on sufficient evidence that the images were of actual children, i.e., that it was possible they were photoshopped, but I don't know if that was argued at trial.

Typically in a CP cases I'm familiar with, the defendant is simply claiming that there is insufficient evidence that he was the one who downloaded the images or that there's reasonable doubt, because someone else had access to the computer.

Posted by: C.A. | Nov 6, 2011 2:15:11 AM

C.A. --

Thank you for your response. I was not, however, asking about burden of proof or questions the defense raises about that.

You had said that the defense is that the "defendant didn't know about the images, or that someone else downloaded them."

My question is: In what percentage of cases is that claim true? Defendants are sometimes successful in arguing that the government did not meet its burden, but in fact they did the deed. To give one notorious example, the OJ jury found that the government did not meet its burden, but I have yet to find a single sensate person who thinks he didn't actually do it.

So, again, my question is not about the BOP. It's simply this: In what percentage of CP cases, where the defense is that someone else did the downloading or the defendant didn't know the pics were on his computer, is that claim actually true?

Posted by: Bill Otis | Nov 6, 2011 9:34:03 AM

I just wanted to jump in on this interesting conversation...

First, I do think that Assistant State Attorney Steve Marsesca is right to point out the market dynamics involving child pornography. If people didn't want it, there'd be no reason to make it. That does not mean, however, that those who view child pornography are perpetrating a violent crime. That would mean that every time someone looked at a photo of a murder he/she would be committing a violent crime, which is of course preposterous.

Second, before I got my PhD and became a law professor, I was a deputy public defender in San Diego. I actually handled a few ugly CP cases. In some cases it is clear that the accused (or someone who had access to his computer/email/credit card) actually downloaded the material because they paid for it or saved it into a new file or emailed it to someone else. In other occasions, however, the illegal images have been deleted and are recovered from the hard drive. That creates the real possibility of false accusations because if the accused inadvertently views CP (and it is all over the internet) or receives an email with an image and immediately deletes it, these images go into is/her hard drive and remain there indefinitely.

And finally, I'm not sure how one would be able to figure out in what percentage of cases the defendant is actually innocent of the charge. The weakest cases for the prosecution are thrown out at prelim. or are plea bargained. The stakes are very high in sex cases. Not only is it difficult to select a fair and impartial jury, but there are also serious mandatory minimums. As a result, it is easy to understand why an innocent person would plead guilty to a lesser offense.

Posted by: Tamara Lave | Nov 6, 2011 4:00:36 PM

@Tamara.

"First, I do think that Assistant State Attorney Steve Marsesca is right to point out the market dynamics involving child pornography. If people didn't want it, there'd be no reason to make it."

Except for the fact, as you hint at, most cases of child porn don't involve the actual exchange of cash. So how can there be a "market" when something is not as a general rule bought or sold. The concept of a market simply makes no sense as applied to child porn. People make child porn for all sorts of reasons but rarely is done out of an economic motive. In this regard your own experience might be misleading you. Child porn which is purchased with a credit card is going to be prosecuted simply because the money trail makes it easier to convict. But in the larger picture such cases are outliers.

To me comments like your are a sad reflection of an American cultural disease. We are so used to defining everything in capitalistic terms that we cannot simply believe that there are people out who do things without money on their minds. If there is a market for child porn it's overwhelmingly a barter-based market. I think, however, it's just better to drop the market analogy entirely.

Posted by: Daniel | Nov 6, 2011 4:57:53 PM

Daniel,

i appreciate your comments, but that's not quite what I meant. I'm not saying that people make child porn out of an economic motive, although I'm sure that some do. What I mean is that if there wasn't a demand for child pornography then there would be no reason to produce it.

And the point that I'm making is that the accused's desire for child pornography is partially responsible for it being made. That's where the harm comes from, and that's why it should be punished.

Tamara

Posted by: Tamara Lave | Nov 6, 2011 7:51:55 PM

"And the point that I'm making is that the accused's desire for child pornography is partially responsible for it being made."

Stated this way I agree. I do think, however, that the key word is "partially". I think the impact of demand on supply is usually overstated. There was sexual interaction with children by adults long before photography was invented.

A primary use of photography by pedophiles is as a seduction technique. Children are trained in ordinary life to be compliant before a camera. Moreover, the act of self-recognition through a photograph typically delights a child: the identify with it as a form of play. So when a pedophile hauls out a camera the first thought in his or her mind is usually not that their going to take some photos to share with some anonymous stranger on the net. They pick up the camera to bring the child to heel. Moreover, once the photos are made some pedophiles use them as blackmail to ensure the silence of the child. It's easy to make the child feel guilty and at fault for what has happened and the simple threat of exposure is yet another control technique.

Even if society could somehow magically prevent the dissemination of every single picture of child porn it would still be made by pedophiles. They need it to control and groom the child. The actual demand by third-parties for explicit pictures is a motive in only a minority of cases. People who haven't examined the problems in detail usually overestimate, often vastly overestimate, the demand side of the equation because it serves as a basis for their vapid moral preening. Getting a conviction for possession on some poor sop who in a moment of personal weakness while going through some life crisis downloaded something off the internet and wasn't smart enough to hide his tracks is whole lot easier than actually addressing the root causes of pedophilia.

Frankly, rather than lauding harsh sentences for pedophiles all of us should feel profoundly embarrassed. If a third party has possession of child porn that means that there was some act of child abuse that we as a society failed to prevent. Talking about demand is the wrong focus. Eliminate the supply.

Posted by: Daniel | Nov 6, 2011 9:54:57 PM

federalist: "it's nice to demonize those who feel that child porn is an outrage and needs to be stamped out."

me: when have I ever said that child porn is anything but an outrage? When have I ever indicated that I would not like to see it stamped out? However, if given a choice between totally eliminating all existing child porn images and all future sexual assaults of children, I would pick eliminating all future sexual assaults. And I would hope that everyone would feel the same way. Remember the fact that child porn is an outrage because a child was sexually assaulted to create those images.

I believe that as society we should focus on eliminating future childhood sexual assaults - and that sentences in those cases needs to reflect it. To punish mere possession of child porn the same as creation of child porn or the most violent rape of a child may put children at risk of being sexually assaulted if icky pervs - I honestly do not know whether it will or not, but why risk it?

ginny :)

Posted by: virginia | Nov 7, 2011 2:23:52 PM

Ginny :):

Not all CP that has been prosecuted means an actual child was abused. Check out the case of a Japanese ANIME comic collector who was prosecuted for CP.

Posted by: albeed | Nov 7, 2011 10:59:46 PM

Also, keep in mind that many states have mandated child porn laws for images depicting FICTIONAL or computer generated images of children. To state that having such images would be a "violent" crime would be like watching any Dirty Harry movie or any crime and violence movie, subjecting every viewer to committing a criminal, violent act.

The bottom line is that we are legislating emotions, not reality. Note the only sentences in excess of 100 years is for child related sex offenses, not murder or non sexual violence against adults and children alike.

Posted by: Eric Knight | Feb 3, 2012 12:57:00 AM

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