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February 1, 2012

Notable recent state child porn sentencing developments in South Dakota

Thanks to this brief new AP article, which is headlined "South Dakota child pornography convict gets 100-year prison sentence cut about in half," I learned about a fascinating ruling from last year by the South Dakota Supreme Court in South Dakota v. Bruce, 2011 S.D. 14 (SD April 6, 2011) (available here).

Working backwards, here is the latest sentencing news in this notable case:

A 100-year prison sentence handed down to a Pierre man convicted of possessing child pornography has been cut about in half.  The South Dakota Supreme Court last year ruled that the initial sentence for 48-year-old Troy Bruce was excessive and ordered a new sentencing.

KCCR radio reports that Judge Mark Barnett on Tuesday sentenced Bruce to a total of 55 years in prison.  Bruce will be eligible for parole after serving one-fourth of the sentence. He also was given credit for about two years he already has served behind bars.

This report prompted me to wonder if the South Dakota Supreme Court had actually deemed a child porn sentence to be unconstitutional, and the Bruce ruling nearly does.  Here are notable snippets from the majority opinion in Bruce:

Bruce was convicted of possessing one DVD containing fifty-five videos of child pornography.  He received the ten-year maximum sentence on all fifty-five counts.  Forty-five of the sentences were suspended, but the sentences on the remaining ten counts were to be served consecutively resulting in a total sentence of 100 years.  Bruce contends that this sentence was cruel and unusual punishment under the Eighth Amendment....

When such statutory ranges are established, the legislative intent is that "the more serious commissions of [the] crime . . . deserve sentences at the harsher end of the spectrum.... Imposing the maximum possible term where the circumstances of the crime only justify a sentence at a lower range violates legislative intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” Bonner, 1998 S.D. 30, ¶ 25.   Further, we now adopt Justice Konenkamp’s recommendation “that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material.” Blair, 2006 S.D. 75, ¶ 83....

With respect to the seriousness of this offense, the pornography involved much more than lewd images but less than the worst possible material covered by the statute....

With respect to Bruce’s involvement, he was convicted of possessing the one DVD containing fifty-five images. Although thirty other discs containing child pornography images were found, the court “consider[ed] Counts 1 through 10 as one act” for the purpose of determining parole eligibility. Additionally, there was no evidence that Bruce manufactured or distributed child pornography. Finally, there was no evidence suggesting that Bruce had ever sexually abused a child, had sexual contact with a child, or solicited a child for sexual images. This was a case of simple possession of images.

Bruce’s character and history reflect that he was a divorced forty-eight year old with three children, one who was still a minor. Other than a careless driving offense, Bruce had no prior criminal history. He was a former member of the National Guard and a veteran who had served in Saudi Arabia and Iraq during Operation Desert Storm....

Bruce’s maximum sentences were not reserved for the most serious combination of criminal conduct and background of the offender. We therefore conclude that this is the exceedingly rare case in which Bruce’s sentence was grossly disproportionate to the “particulars of the offense and the offender.” See Bonner, 1998 S.D. 30, ¶ 25. Because Bruce did not present comparative information with which to conduct an intra- and interjurisdictional analysis, we reverse and remand to the circuit court to consider that evidence on resentencing.

A concurring opinion in Bruce adds these notable observations:

In South Dakota, gross disparity in the sentence length for possession of child pornography exists.  For example, in State v. Martin, 2003 S.D. 153, 674 N.W.2d 291, the defendant’s sentence for possession of child pornography was a term of two years in the penitentiary with all but forty-five days in jail suspended subject to additional conditions. In the present case, the aggregate sentence is a term of 100 years in the penitentiary. Yet the facts of the two cases are similar: both involve the possession but not the manufacture or distribution of multiple computer-based images of child pornography. The difference in the length of the sentences for these similar crimes is shocking.

I think it is safe to assert that, not just in South Dakota, but all across this great nation, "gross disparity in the sentence length for possession of child pornography exists."  I have seen and heard of many state (and few federal cases) in which a child porn possession conviction results in only months in prison, and yet a few months ago in Florida (as reported here) Daniel Enrique Guevara Vilca received a sentence of life without the possibility of parole for mere child porn possession!  What a sad and disturbing mess.

February 1, 2012 at 12:06 PM | Permalink

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Comments

At the upcoming House Judiciary committee hearing on post-Booker disparity, count on the disparities in child porn cases being blamed entirely on liberal judges (despite the fact that more than half the bench were GOP appointees). When you staff the Judiciary committees with former prosecutors and DOJ detailees, the committees unsurprisingly will look for ways to give prosecutors more power.

Posted by: Thinkaboutit | Feb 1, 2012 12:20:10 PM

It is sad and disturbing. And like the rest of the "SEX OFFENDER!!!!!" mess, it's immoral. The people behind it are criminals.

I have to say if a criminal government imprisoned my child for very long for something like this, people would be paying for it with their lives. Guaranteed.

Posted by: FRegistryTerrorists | Feb 1, 2012 1:21:58 PM

It is hard to see how a 55 year sentence addresses the appellate court's concerns for a 48 year old man. The de facto length of the maximum sentence for the man, given his life expectency, is essentially unchanged. Of course, if good time routinely reduces the length of a sentence by, for example, 50%, then the likely sentence has dropped from 50 years to 27.5 years, which would afford the man at least a plausible chance of a couple of years of freedom in his dotage.

Posted by: ohwilleke | Feb 1, 2012 1:28:48 PM

while 100 years was a ludicrous sentence given the offense, the following sentences from the opinion makes it clear that prison is where this icky perv belongs:

"One pretrial issue involved the State's use of other acts evidence in the form of a disc containing child pornography. The disc was found in Bruce's safe and was stained with his semen"

how icky!

erika :)

Posted by: virginia | Feb 1, 2012 4:52:32 PM

Erika:

I haave read that more than 50% of American women own a V-br-t-r or a device which was illegal in Texas until a couple of years ago. How double icky!!

Posted by: albeed | Feb 1, 2012 5:15:37 PM


albeed...How double icky!! Kudos again :-)

Posted by: comment | Feb 1, 2012 5:27:59 PM

All kidding aside, I have a serious question about receipt and possession of CP.

I receive many spam E-mails from virus infected computers from people I know. However, if I have any question about the E-mails I delete them immediately without opeing them up or their attachments, or knowing their content.

If any of these E-mails contained CP, could I be charged with receipt of CP (but not possession), even though I did not know it? As I understand it, If you receive CP, you are to contact LE immeduately (and say bye-bye to your computer for a long time.)

In order to put a stranglehold on its citizens, Is this why the gubermint makes receipt prosecuted more severely than possession?

Posted by: albeed | Feb 1, 2012 5:58:35 PM

Albeed, that is what happened to my husband. He received e-mails from a drunk crazy guy (we are pretty sure he went to a treatment center before he could be sent to prison) and because my husband opened the e-mails and they contained two pictures of CP my husband was charged with Receiving, not possesion. 5 years mandatory minimum.
By the way the guy continued to send pictures to my husband. The whole thing took place one night in about a two hour time period. The Feds tried to charge my husband with the pictures that were sent after my husband logged off and had deleted the pictures from drunk crazy guy.

Posted by: JS | Feb 2, 2012 12:55:24 PM

@ albeed:

Can't we all just agree that sex in any form is icky, irrespective of whether it complies with the particulars of a state or federal statute? I think that's the major unstated premise we're dealing with, wouldn't you agree?

Posted by: Guy | Feb 2, 2012 1:03:46 PM

Guy:

You know, I am an old-fashioned type of male pig. I have had s-x with only one woman (my wife of greater than 35 years) and I still enjoy it. I think she does too.

She never referred to it as icky and neither did I.

Posted by: albeed | Feb 2, 2012 1:22:37 PM

@ albeed:

I'm having to put on my thinking cap here, but I'd be willing to venture a guess that even that, in the eyes of some keyboard commandos, would probably be regarded as icky as well. It is, after all, sex. :)

Posted by: Guy | Feb 2, 2012 6:06:54 PM

albeed, the ickiness lies not in the act of self pleasure, but in the fact that this icky perv was pleasuring himself while looking at pictures of little girls being raped.

you can try to spin a scenario where someone might innocently run across images of little girls being raped, but they pretty obviously do not apply here. its pretty obvious this icky perv gets off on little girls being raped so he definitely belongs in prison.

erika :)

Posted by: virginia | Feb 3, 2012 8:22:04 AM

guy: "Can't we all just agree that sex in any form is icky, irrespective of whether it complies with the particulars of a state or federal statute?"

me: sex between consenting adults is never icky.

sex between an adult and a 5 year old is always icky.

why is that concept so diffiuclt for some people to understand? :)

guy: "I think that's the major unstated premise we're dealing with, wouldn't you agree?"

me: you obviously don't know me very well ;)

erika :)

Posted by: virginia | Feb 3, 2012 8:34:24 AM

STRAWMAN ALERT! STRAWMAN ALERT!

The board now contains a proposition that the real problem with those opposed to child pornagraphy is that they oppose sex per se.

Can anyone spot the strawman in this picture?

Let me rephrase that. Can anyone NOT spot the strawman in this picture?

Posted by: Bill Otis | Feb 3, 2012 12:24:37 PM

She never referred to it as icky and neither did I.

--

You're doing it wrong.

Posted by: Soronel Haetir | Feb 3, 2012 6:56:17 PM

Soronel:

Good one!

Do you have the Texas SO data yet?

Posted by: albeed | Feb 3, 2012 7:16:19 PM

albeed,

Yeah, but my premise going in was wrong. There are no offenses that land someone on a non-publicly available Texas registry. There are offenders who are not publicly listed for various reasons (certain juveniles, those whose processing is not yet complete mostly) but it is always tied to something about the offender and not the underlying offense. Given that my entire premise was wrong I didn't see much point in going forward. Certainly if you were to use a categorical approach of the sort used for ACCA predicates every offense that gets someone listed is a serious felony.

When I was in contact with TX DPS there were about 1100 non-listed offenders and close to 70k listed.

There really isn't enough data to try and quantify how many of the total are Romeo and Juliet type cases but the perusal of the public database I've done leads me to believe it's a small slice of the total.

Posted by: Soronel Haetir | Feb 3, 2012 8:20:35 PM

Soronel:

Any slice is too high, or do we give up on good human beings and say, O well?

Posted by: albeed | Feb 3, 2012 10:15:36 PM

soronel, when it comes to consensual relationships between adults, what one person may find icky, another person may find extremely pleasurable.

albeed, I know you wanted Texas, but try looking at Delaware and Iowa's sex offender registry which have much better search interfaces. Delaware allows searches by offense at conviction. Iowa has an excellent advanced search interface which allows you to search by almost any feature you want. Iowa also allows you to sort results by age. Both are states with lower populations so there aren't as many results. In both cases, it will reveal that "Romeo-Julliet" relationships rarely land people on the sex offender registry.

On the other hand, masturbating while looking at pictures of little girls being raped or raping little girls will always land someone in prison and on the sex offender registry. And should - because those offenders are dangerous!

Erika :)

Posted by: virginia | Feb 5, 2012 8:06:43 AM

Erica,
What is the study you found that says people who look at pictures are dangerous?
Just your opinion?

Posted by: Curious | Feb 5, 2012 4:13:57 PM

Curious:

Yes, it is just Erika's feminist opinion.

eriKa:

That you just blew off my comment on another post that there are 6 times more sex offenders per capita in Oregon than Pennsylvania, (quite a statistical anomoly don't you think) tells everyone how arbitrary and capricious these laws are.

Posted by: albeed | Feb 5, 2012 10:33:52 PM

curious: "What is the study you found that says people who look at pictures are dangerous?"

me: when the pictures are of little girls being raped, it is pretty self evident that the person is an icky perv pedophile who desires to have sex with little girls or an icky perv sadist who gets off on the infliction of pain on girls. Icky pervs are dangerous because of the risk that they will ecsalate their behavior and actually attack and rape a child. Once a person has shown an attraction to the rape of little girls (or boys), he (or extremely rarely she) has shown him (or extremely rarely her) to be an icky perv and society needs to treat icky pervs as being dangerous.

Now because the icky perv as far as can be proved has only looked at pictures they deserve a sentencing break over that of someone who actually rapes a child. However society still needs to take steps to protect itself from the icky perv and because there is no effective treatment for pedophilia those steps need to be eliminating the icky perv's access to children through a prison sentence, placement on the sex offender registry, "treatment," and restrictions on freedom to prevent access to children following release.

erika :)

Posted by: virginia | Feb 6, 2012 6:19:15 AM

albeed, under our federal system, states are free to set their laws as they desire. If Oregon has more sex offenders per capita due to more restrictive laws, Oregon has made that decision. If by contrast, Oregon has more icky pervs per capita than Pennsylvania, it should lead one to ask what makes Oregonians so likely to molest children or what attracks icky pervs to move to Oregon.

Erika :)

Posted by: virginia | Feb 6, 2012 6:26:11 AM

Erika:

My comments are about justice, not what our current perverse lawmakers consider to be vote-getting prostitution. I am glad you are a legend in your own mind. However, you don't realize that your continued use of the icky pervs noun is somewhat akin to using the N word in the old south. It has no absolute descriptive value except to demean, not explain.

Posted by: albeed | Feb 6, 2012 9:28:54 PM

Some people here apparently think that the Registries and "restrictions" on freedoms somehow "prevents access to children". That is quite indicative of someone who has no grip on reality. I assure you that a person can be listed on a nanny, big government Registry and spend as much time around children as one likes. And of course, as many people on here know, some people spend a lot of time around random children just because they are listed on a government list.

BTW, where are the rest of the Registries? We are waiting.

Posted by: FRegistryTerrorists | Feb 7, 2012 6:18:57 PM

albeed, icky pervs are icky pervs based upon their actions. are you seriously comparing the treatment of pedophiles who act upon their disgusting desire to have sex with children to discrimination based upon race?

don't be riduculous! :)

Erika :)

Posted by: virginia | Feb 10, 2012 12:11:21 PM

albeed, incidentially, would you agree with classifing this mother as an icky pervette?

http://www.stltoday.com/news/local/metro/woman-admits-to-sex-acts-with-infant-daughter/article_150d8aba-4b97-11e1-9f78-001a4bcf6878.html

incidentially, for her 100 years in prison is too low of a sentence!

Erika :)

Posted by: virginia | Feb 10, 2012 1:43:42 PM

Erika I would kindly appreciate it if you could take your insignificant feminist views and smear them on some other blog that shares the same ignorant thoughts as your own. This blog is for open-minded individuals who want to discuss justice and injustice, not "icky pervs"

Posted by: PleaseUSJesus | Feb 10, 2014 8:06:53 PM

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