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January 9, 2012

Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading

An interesting and potentially important reasonableness review decision was handed down by a Sixth Circuit panel this morning in US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (available here). Folks concerned with the operation of reasonableness review or with child porn sentencing should be sure to read this thoughtful opinion in full. Here is how the opinion gets started along with one of many notable passages from the heart of the opinion:

Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many, if not a majority, of those images and videos depicted 8- to 10-year-old girls being raped by adult men.   Under the Sentencing Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment.  The district court rejected that recommendation and instead sentenced Bistline to a single night’s confinement in the courthouse lockup, plus ten years’ supervised release.   The United States contends that Bistline’s sentence is substantively unreasonable, arguing that the district court improperly rejected the relevant sentencing guideline as “seriously flawed” and that Bistline’s sentence fails to reflect the factors recited in the sentencing statute.  We agree, and vacate his sentence....

The district court made a number of observations with respect to the seriousness of this offense.  Many of them served to diminish it.   The court did say that the images on Bistline’s computer were “horrendous,” and that the “production of child pornography and the distribution of it is an extremely serious offense, one which should be punished accordingly.”   But notably omitted from that recitation (and virtually unpunished in this case) was the crime of possession of child pornography.   Indeed, the court said there are “significant differences . . . in the degree of culpability in the chain of events that leads to the display of child pornography[,]” with the “most culpable” persons being “those who are involved in actually performing these acts and photographing them.”   We agree with that statement so far as it goes.   That the producers of child pornography are more culpable, however, does not mean that its knowing and deliberate possessors are barely culpable at all.

January 9, 2012 at 01:23 PM | Permalink

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Comments

I have said for some time that a not insignificant slice of those opposing the present sentencing guidelines for CP take that position because, whether they admit it or not (they don't), they see nothing wrong with CP.

That almost always gets hotly denied, but the actions of the district court in this case make my point more graphically than I ever could of. Here we have a guy who has a whole bunch of pictures of little girls getting raped, and the "sentence" is that the district judge blows the guy a kiss.

Would anyone care to defend such an outcome?

Posted by: Bill Otis | Jan 9, 2012 7:06:35 PM

The district court held a sentencing hearing. Near its outset, the court said that
“the guidelines for possession of child pornography are seriously flawed” as a result of
Congress’s involvement in them. The court then contrasted possession of child
pornography with some related offenses—such as its distribution—that the court
regarded as more serious. The court also emphasized Bistline’s age, health, and putative
need to care for his wife. Eventually the court announced its intention not to imprison
Bistline at all, but instead to confine him overnight in the courthouse lockup.

Seems like the Judge has contempt for congress and their involvement in setting specific sentences. He doesn't have a history of lenient sentences for child porn- that I could find. It will be interesting to see his resentence. The 6th just may have to reassign this case if he doesn't give this pervert at least 4-5 yrs.

Posted by: DeanO | Jan 9, 2012 8:07:46 PM

I wonder why the defendant wasn't charged with receipt of CP, carrying a 5-yr mandatory minimum? Many US Attorneys offices charge this exact set of facts, peer-to-peer downloading/Limewire downloading as receipt because of the minimum and refuse to bargain down to possession.

Posted by: AFP | Jan 9, 2012 9:06:28 PM


"a guy who has a whole bunch of pictures of little girls getting raped, and the "sentence" is that the district judge blows the guy a kiss."

Please get a grip, did they find and prosecute the person who made the images. Probably not, these images will be floating around on the internet for as long as there is an internet. Just more taxpayer funded money pipelines for the feds. Same as the drug wars and the Homeland Security money pits. Scapgoating at it's best for lack of intelligent thought. Start cleaning up the original sources of the material and you'll break the cycle instead of picking the low hanging fruit, what a farce. Just another Fallwellian/Larry Flynt attack approach with an ever escalating encroachment of personal rights and continuing erosions on individual privacy.

Posted by: comment | Jan 9, 2012 9:14:45 PM

Bill:

If the FBI or DOJ provided the pictures, why aren't they also prosecuted? The government should not be enablers of crimes. They have the pictures too and are NOT ABOVE THE LAW. Or are they?

Posted by: albeed | Jan 9, 2012 10:02:34 PM

Hey Bill, care to guess the appointing Prez of sentencing judge here?

Posted by: Doug B. | Jan 9, 2012 10:29:03 PM

Bill,

AnonymousOne did attempt to defend such an outcome when he tried to engage the members of this blog in a frank discussion of why CP is actually illegal. Nobody really responded to his questions.

Barkley

Posted by: Barkley | Jan 9, 2012 11:31:30 PM

Doug --

I'll assume it was Reagan or one of the Bushes.

Now that I've answered your question, let me ask you one: Do you think no punishment whatever for possessing multiple pictures of little girls getting raped is even defensible, much less correct?

Posted by: Bill Otis | Jan 9, 2012 11:58:01 PM

Barkley --

Actually, I enaged with AnonymousOne substantively and (after an initial misstep) respectfully. If memory serves, I was the only one to do so. It's quite true that conversation came to an end, as all threads do.

Now let me ask you the question I asked Doug: Do you think no punishment whatever for possessing multiple pictures of little girls getting raped is even defensible, much less correct?

Posted by: Bill Otis | Jan 10, 2012 12:04:10 AM

albeed --

"If the FBI or DOJ provided the pictures, why aren't they also prosecuted? The government should not be enablers of crimes."

Do you have any evidence the government provided the pictures? I don't.

"They have the pictures too and are NOT ABOVE THE LAW. Or are they?"

No they are not above the law. Your mistake is in believing that when the government seizes contraband from the malefactor, then legally the government stands in his shoes. It does not. This is easy to see with a short example. Mr. X robs the bank, and possesses the proceeds in his briefcase. The government gets a warrant and seizes the briefcase. This means that the government is then in possession of stolen property.

Are the seizing agents going to get prosecuted for that? Of course not, since their actions were undertaken pursuant to lawful authority. Would you even WANT the agents to be prosecuted?

Same deal when agents seize a meth lab. They are then in possession of contraband. Should they then be prosecuted?

Posted by: Bill Otis | Jan 10, 2012 12:15:49 AM

Sex offender registration and supervised release--especially with computer and other restrictions--is extremely punitive. This guy's life is over, in prison or out. People who minimize life as a registered sex offender really have absolutely no idea what it is like to be one. It is hellish. So that in itself is a lot of punishment.

You are asking what punishment someone deserves for possessing pictures of a crime being committed. I think the appropriate punishment is the same as would be warranted for someone who possessed a picture of a man being murdered, a prisoner of war being shot, or a child overdosing on drugs.

On your final point, there are many instances of federal and state authorities trading child pornography for law enforcement purposes. But if law enforcement actually believed that each instance of such possession was itself victimization, this would be unconscionable. Much as it would be unconscionable for law enforcement to trade a child into sexual slavery so as to catch more predators. While we speak the rhetoric of victimization, our actions belie it.

Posted by: Barkely | Jan 10, 2012 12:33:49 AM

Barkely --

The legal and moral distinctions between (1) law enforcement possessing contraband as part of the exercise of police power, and in order to carry out statutes the legislature has written, and (2) some pervert possessing it for sexual gratification, is too well established, and too obvious, for me to continue to argue about it.

The question I asked was whether you think there should be no jail time whatever for possessing multiple pictures of little girls getting raped. Your answer implies that you think no jail time is the correct response, but does not say so in haec verba.

Is that in fact what you think?

Posted by: Bill Otis | Jan 10, 2012 2:11:28 AM

bill: "I have said for some time that a not insignificant slice of those opposing the present sentencing guidelines for CP take that position because, whether they admit it or not (they don't), they see nothing wrong with CP."

me: really, bill - there are numerous reasons why one might oppose the child porn guidelines, but the only reason you can think of to the point of accusing a federal judge of it is thinking that there is nothing wrong with possessing child porn.

Personally, the main reason to support incarceration of child porn defendants is because they are icky pervs and thus a threat to children - hence, locking them up in prison protects children. However, because incapacitation is the primary goal of locking up icky pervs, there should be allowances for icky pervs in poor health to get lesser or maybe even no prison sentences.

bill: "Here we have a guy who has a whole bunch of pictures of little girls getting raped, and the "sentence" is that the district judge blows the guy a kiss."

me: thank you for acknowledging that the sex offender registry is in fact not punative, but this is misleading. It appears that the primary considering in the district court sentencing this icky perv was that he was elderly and in poor health. Not knowing the extent of his health issues, I cannot say whether the sentence would have been unreasonable for a more repentive icky perv in a similar situation. But I agree with the court that given the fact that the icky perv believed that there was nothing wrong with him watching little girls get violated and he had a quite extensive and focused collection that he needs some prison sentence even if given a discount due to being elderly and in poor health.

Of course, I know a perfect alternative sentence in such cases where the icky perv is elderly and/or in poor health and therefore prison may not be appropriate - but he's still an icky perv who needs punishment. Namely castration. This icky perv seems like a perfect candidate for castration as an alternative to prison.

DeanO: "The 6th just may have to reassign this case if he doesn't give this pervert at least 4-5 yrs."

me: why would they do that considering that the presentence report recommended about a 2 year sentence which was a substantial discount over the guidelines. Apparently motived by the health issues and age of the defendant - such a sentence likely would have been approved as reasonable and it seems okay. But that is presuming that his poor health and advanced age renders him unlikely to rape an actual child.

AFP: "I wonder why the defendant wasn't charged with receipt of CP, carrying a 5-yr mandatory minimum?"

me: probably due to the age and ill health of the defendant which renders him less necessary to incapacitate to protect children.

comment: "did they find and prosecute the person who made the images"

me: if you would have read the case, you know that the answer is yes and that he is serving a life sentence.

Erika :)

Posted by: virginia | Jan 10, 2012 7:02:52 AM

What if the sentence had been 120 months of strictly controlled house arrest ?

Posted by: Docile Jim Brady | Jan 10, 2012 7:05:55 AM

Good a.m., Virginia.

Aside from the Eighth, would you perceive a clitorectomy and mastectomy as appropriate punishment for an adult female who had falsely accused another of rape ?

What punishment alternative is there if a male had already been castrated because he had testicular cancer ?

Virginia:Of course, I know a perfect alternative sentence in such cases where the icky perv is elderly and/or in poor health and therefore prison may not be appropriate - but he's still an icky perv who needs punishment. Namely castration. This icky perv seems like a perfect candidate for castration as an alternative to prison.

Posted by: Docile Jim Brady | Jan 10, 2012 7:20:55 AM

Bill,

Yes, in some circumstances, no jail time is appropriate. If this man's fantasies disturb society, they should provide him with mental health treatment. But they are thoughts. I don't buy that his "action" is any more deserving of punishment than any of the other incidents of possession of images of crimes being committed, a number of which I listed. Instead, as we don't penalize possession of any other image of a crime being committed, I tend to think that the CP possession crime is really about punishing the perverse thoughts of perverts.

As to the second point. There is a moral distinction between law enforcement exploiting a child for the benefit of others, and a pervert doing so for his own benefit. But that is really not at all the point, as I didn't contest that. My point was that if we truly believed it to be an active form of victimization, we would never let law enforcement do it, much as we would not let them trade a child into sexual slavery so as to catch additional perpetrators. The fact that we allow one but not the other of law enforcement is really a tacit acknowledgement that despite the rhetoric, we don't really buy into the idea in practice that possession is active victimization.

Barkley

Posted by: Barkely | Jan 10, 2012 8:08:02 AM

No one seems disturbed by the swaggering tone of this opinion, which connotes at least as much of a political motive as any of the quotes the opinion attributes to the district court.

Posted by: anon | Jan 10, 2012 9:07:58 AM

I think this punishment is too light given that Congress and a great majority of the American believe this conduct is injurious. I also believe one day was too lenient. That does not mean, however, that there are not serious flaws with the CP sentencing guidelines. You can criticize the guidelines without being pro-CP, just as you don't have to be in favor of insider trading to realize that the fraud guideline as applied to insider traders is absurd.

Posted by: Thinkaboutit | Jan 10, 2012 9:48:24 AM

Guidelines are often excessive in this area, but the district judge here probably swung the pendulum too far in the other direction. (I say probably b/c if the man was really old and terminally ill or something, it might be within the judge's discretion to do what he/she did.)

Posted by: Anon2 | Jan 10, 2012 12:01:44 PM

hmm

"There is a moral distinction between law enforcement exploiting a child for the benefit of others, and a pervert doing so for his own benefit."

actualy barkely your WORNG it is WORSE! Sorry a CRIME is a CRIME no matter WHO is comitting it!

if anything i'm going to hold law enforcment to a HIGHER STANDARD since they should KNOW BETTER!


as for this from thinkaboutit

"I think this punishment is too light given that Congress and a great majority of the American believe this conduct is injurious."

most of american and the WORLD once though SLAVERY was right and legal.. turns out we have now decided THEY WERE WRONG!


making absolute statement like that are WRONG as well.

Posted by: rodsmith | Jan 10, 2012 2:07:10 PM

Unfortunately, this blog is populated by lawyers. I say that out of respect. I have been working in this area for almost 20 years. Amongst lawyers and policy makers, there is great arguments back and forth over the proper punishment for CP. That has been beaten to death here. A view that is not presented is of the "common" citizen. Over the years, I have asked the question, "what is an appropriate punishment for someone who ONLY looks at CP, doesn't create it, doesn't distribute it. Is five years too long, too short, just right?" (I know that the mandatory minimum of five years is for receipt, not possession, but I just use that time as a barometer). In my years of asking, I have yet to find one person in the general public who thinks five years is too long...NOT ONE. Most either think it's about right, or too short.

I have recently shortened the time to two years to see if I would get a different reaction, and NO ONE has said that two years is too short, OR JUST RIGHT...to a person they say it is too short. I have asked people with children and people without children. I have yet to have to say, "the pictures being looked at aren't "Coppertone" type of pornography, but depictions of rape and other heinous acts"...I can only imagine what people would say.

So, when people are debating back and forth here, I sometimes laugh because there is no debate in the public arena. Maybe this is why Congress, who represent the people, are so hell bent on punishing these offenders so harshly.

Posted by: Kelly | Jan 10, 2012 2:17:07 PM

Kelly,

I have tired of making important policy on the basis of surveys of laypersons. Gut reactions on matters of criminal justice and sexuality are likely to be extremely biased, unprincipled, and unreliable. I think history bears that out all too painfully.

Barkley

Posted by: Barkley | Jan 10, 2012 3:11:10 PM

docile jim: "Aside from the Eighth, would you perceive a clitorectomy and mastectomy as appropriate punishment for an adult female who had falsely accused another of rape ?"

me: No. Quite simply, the punishment would have absolutely no relationship to the crime for a woman who falsely reported rape. There is no connection between a woman's sexual organs and a false rape report - there is quite a lot of connection between an icky perv's sex organs and his looking at child pron.

It would also be extremely problematic since it is difficult, if not impossible, to show a rape allegation was truly a false report (this is a case where there was no sexual contact between the alleged victim and the alleged perp or the charge is otherwise made solely for malicious purposes - he said, she said cases where consent or incapacitation is the issue are not really false reports because something can be "rape" but not legally rape if that makes any sense) - one reason why charges in such cases are rarely brought. The other reason is covered in more detail before - namely that a woman bringing a truly false report of rape unless done for malicious purposes such as in a child custody case is likely suffering from serious mental illness. In addition, it would be grossly disproportionate to what is likely a misdemeanor false reporting offense.

In fact, my belief is that the primary focus in false rape reporting cases should be on mental health treatment since false rape reports are not something that appears out of the blue. Often there are serious unresolved trauma issues - that is to say that women who "falsely" cry rape were very rarely never raped - they may have been raped 20 years beforehand as a child, but have never really had those issues addressed. As such, the mental health aspects should be highest in such cases.

Docile Jim: "What punishment alternative is there if a male had already been castrated because he had testicular cancer ?"

me: since castration in this case would be an alternative to incarceration, obviously prison would be the alternative sentence

Erika :)

Posted by: virginia | Jan 10, 2012 6:09:38 PM

Erika,

False rape allegations can completely destroy a defendant's life. So why not have an extraordinarily severe punishment? And, to most fans of harsh CP laws, it would be no mitigator that the woman may have unresolved psychological issues. Many CP offenders do.

Barkley

Posted by: Barkley | Jan 10, 2012 6:17:27 PM

Hope they never fine tune the ability to read minds because we'll all be looking at jail time for one thing or another. The 'Thought Police' may be closer than you think.

Posted by: comment | Jan 10, 2012 8:14:33 PM

Ginny/Erika,

It seems unlikely that the USAO chose to charge possession to allow for less than 5years but then sought over 5years in the sentencing hearing as the guidelines suggested. Granted, charging receipt would have bumped up the range, but I dont see many prosecutors seeking less through charging when they can advocate for lesser time in other ways while still guaranteeing the minimum if desired. To me, the charging decision just highlights how sentencing disparity is accomplished by prosecutors too. There is absolutely no difference in facts between posession and receipt of CP on a despite the starined attempts to describe one (e.g. One can merely possess vice receive by merely finding CP (like in the trash) and choosing to keep it. However, this is never the fact pattern nor a likely one.) To possess CP, every defendant in every federal case I have read, received it somehow. Further, USAOs typically must, by policy, charge the highest crime warranted by the facts. This leads most offices to go for receipt with the mm because there is no distinction in facts that they have to make. The defendant got very lucky with both the prosecutor and judge on this one.
-AFP

Posted by: AFP | Jan 10, 2012 9:46:25 PM

Hello Every Clear thinking Freedom Lover in Arms!

Why is receipt of CP much worse than Possession.

If you inadvertendly receive any CP and attempt to delete it, you are Shit out of Luck. You received it, you do not possess it any longer, well we can prove you received it.

Heil Obamaa!

Posted by: albeed | Jan 10, 2012 11:05:48 PM

AFP, it sounded like from the opinion the government was asking for a below guidelines sentence of about 2/3 years. Maybe I misread it, but that would seem to indicate that the decision to not bring the charge with the 5 year mandatory minimum was deliberate. My best guess is that the decision was based upon the health issues

It may also indicate that but for the lack of remorse shown by the defendant, the 1 day sentence may well have been reasonable given the health issues. Especially if the health issues rendered the icky perv unable to "perform."

Albeed, you said that I'm not worth talking to due to being too young and immature and then you post drivel like that. Really?

Erika :)

Posted by: virginia | Jan 12, 2012 12:43:45 PM

Erika:

The key word in my comment was inadvertently. I am sorry my mispelling misled you.

Posted by: albeed | Jan 12, 2012 5:51:52 PM

Erika,

The probation officer recommended 24 months based on among other things, health and age. The USAO disagreed with that recommendation and argued for a within guidelines sentence which started at 63 months.

-AFP

Posted by: AFP | Jan 13, 2012 12:43:42 AM

Have any of you ever used peer to peer software such as Limewire? There are a lot of people locked up from this website that are not "icky pervs". There is no rhyme or reason as to when a US Attorney hands down receipt or possession. I know 2 people with almost identical numbers of photos, images and prior history( none!) all files were from Limewire, one got possession and one got receipt. One person got 41 months(for possession) the other 36 months for receipt (then re-sentenced to 5 years due to the MM)

Posted by: Jill | Jan 19, 2012 9:18:36 PM

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