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August 28, 2014

At third federal sentencing, elderly child porn defendant gets one year in prison and lawyer pledges SCOTUS appeal

Regular readers and hard-core federal sentencing fans are familiar with the long-running dispute over the sentencing of child porn downloader Richard Bistline.  The latest chapter of this saga, but apparently not the last, unfolded in federal district court yesterday as reported in this Columbus Dispatch article, headlined "Child-porn possessor finally gets harsher sentence: 1 year in prison." Here are excerpts:

A Knox County man at the center of a fight about prison sentences for people convicted of possessing child pornography won’t be out of the spotlight anytime soon.  Richard Bistline, 71, was sentenced yesterday to a year and a day in federal prison by U.S. District Judge George C. Smith, who also ordered 10 years of supervised release.  Bistline also must register as a sex offender.

Bistline’s attorney, Jonathan T. Tyack, immediately said he will appeal the case in the hope that it eventually will be considered by the U.S. Supreme Court....

It was the third time that Bistline, of Mount Vernon, had been sentenced for his 2009 conviction on one count of possession of child pornography.  Sentencing guidelines set Bistline’s prison term at five to six years, although judges have discretion.

His case pingponged from district court to the 6th U.S. Circuit Court of Appeals twice after federal Judge James Graham refused to sentence Bistline to lengthy prison time. Instead, he sentenced him in 2010 to one day in prison, 30 days of home confinement and 10 years of supervised probation.

Assistant U.S. Attorney Deborah Solove appealed, arguing that prison time was needed, and the 6th Circuit ordered Graham to resentence Bistline.  In 2013, Graham ordered the same sentence with three years of home confinement. Solove appealed again, and the 6th Circuit ruled that the sentence still was not adequate.

Graham was removed from the case, paving the way for Smith’s sentence yesterday.  “The 6th Circuit has clearly spoken and is requiring me to impose a custodial sentence,” Smith said.  “I hope my colleagues and the sentencing commission continue to shed light on these very important policies.”  Smith then stayed the sentence and said Bistline could remain out on bond until his appeal is decided.

Tyack had asked Smith to sentence his client to one day in prison and 10 years of supervised probation.  “At the end of the day, the Court of Appeals is attempting to dictate to this court what sentence it should impose,” Tyack said. “It’s inappropriate.”

Tyack said he hopes the Supreme Court will arrive at that conclusion in Bistline’s case. “He’s caught up in a legal fight that will ultimately define the boundaries between the court of appeals and district court,” Tyack said.

Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer revealed 305 images and 56 videos of children posing naked or involved in sex acts with adults. Solove said Bistline sought out child pornography for more than a year for sexual gratification. She asked for a five-year prison sentence.

Tyack said in court documents in May that “a 71-year-old inmate with Mr. Bistline’s health problems is likely to suffer greater punishment than the average inmate because the Bureau of Prisons often fails to provide adequate or even necessary medical treatment.” Bistline has a pacemaker, high blood pressure and hearing loss, among other medical problems.

Graham has been outspoken about Bistline’s case and about the federal sentencing guidelines for defendants who have been charged with possession of child pornography. He wrote a lengthy law-review article about the case that was published in December, and he has spoken about the guidelines at court hearings for other defendants charged with child-porn possession.

August 28, 2014 at 10:09 AM | Permalink

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The discourse on child pornography(CP) is dominated by thousands of child charities and others who have an interest in exaggerating its extent and impact in order to keep donations and government grants filling their coffers. This hysteria over child sexuality has persisted for so long because, only those who profit from that hysteria have been allowed to frame the debate. The Child Abuse Industry is a Billion dollar a yr. business with its own Law Enforcement(LE) arm well paid CEO's and staff that create Gothic Melodramas, monster stories of child molesting playing them out on TV news and in newsprint every day to keep people scared and keep the donations and government grants coming. The people are provided these Gothic melodramas with not just titillation but assurances by them they are our righteousness protectors. They demonize child porn to connect you to their pedophile drama while pretending to shut it down.

Today CP is the main activity in terms of Internet related sex crime, certainly in terms of convictions. So how is CP a BILLION dollar business? The cost of a social worker is $30.000 dollars a year; the cost of a police officer is $40.000-$75,000 dollars a year; the cost of a Homeland Security agent is $75.000-$150,000 dollars a year; the cost of a lobbying a politician well over $1,000,000 a year; the cost of a “charity worker” is $35.000 a year; The cost of CP conferences over $150,000 a year; the cost of CP Internet filters is in the millions $1,000,000 a year; the cost of the child abuse industry's bizarre lavish anti CP lifestyles exceed $1,000,000,000 that is how. The major costs of CP are the agencies and people in charge of going after it. Most CP is underground, there is no multi-million dollar Hollywood studio producing it as some want you to believe. The Coalition of Parents estimates that the child abuse industry costs US taxpayers $285 billion/yr. and they get away with it because of people Angst. Journalist need to be able to see the contraband to report on it; However is not the case with CP where they are scared to death of being called a pedo and we are at the mercy of LE measures. Curiosity energizes and ennobles; Curiosity keeps people coming back whether there is a new gadget or not, because they know they might learn something new. LE has learned from the social sciences on how to cultivates curiosity which make their, “CP pull marketing” work.

Federal and State CP statutes criminalize the creation or possession of sexually explicit materials featuring children which are called child sexual abuse crime scene images and they can consist of anything that involves a person under the age of 18; including an 18yo. consensual SEXTING (sharing images) with their 16yo. girlfriend or visa versa. However there exists a discrepancy between the two age classifications being the age at which a person can consent to sex and the age at which that individual can consent to being photographed in a sexually explicit manner is a major issue and consist of contradictory laws legislators need to reconcile. Legislators have drawn upon pre internet research when people actively had to exert effort and seek out the contraband; However with the INTERNET the contraband is but a click away. Legal rights not being absolute depend on the nature of the right and the government must make an appropriate showing to justify any abridgment of that right. The Ferber Court found that CP did not need to first be determined obscene to be subject to regulation. Congress then passed the Child Pornography Prevention Act of 1996 which attempts to restrict the creation and spread of CP on the INTERNET. Ashcroft v. Free Speech Coalition prohibited “any visual depiction, including any photograph, film, video, picture, or computer or computer generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” and included any images “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” that it depicts “a minor engaging in sexually explicit conduct for all but HOLLYWOOD.

Legislators have passed CP laws based on pedophile drama assuming there was a market for CP which causing it to be “intrinsically related” to the underlying abuse and therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.”; However today child sexual abuse images can be found for FREE on the INTERNET using P2P software. There is NO market for CP and if arrested for possession of child sex abuse images people are at the mercy of the prosecutor. The fear industrial complex, the child abuse industry and the entertainment industry are BILLION dollar corporations composed of politicians, activist groups and child charities who create Gothic Melodramas and monster stories of child molesting by selling us on the idea that they can provide safety from the very dangers they are scaring us about. One should look up the research paper entitled, "Statistics Laundering: false and fantastic figures". People antipathy towards child sexual abuse is antecedent of their own furtive behavior to hide the depths of their lives' disparity. People that have researched the topic concede that over 95% of the child sexual abuse is infamilial and less than 1% is at the hands of strangers. Ones antipathy posited as fact about a child sexual abuse is what is driving the current CP witch hunt. A person GIVING images power is called VOO-DOO. If the simple act of viewing a crime scene image (CP) is harmful perhaps an appropriate punishment would be to simply take a photo of the perpetrator in jail, then set them free, but have some look at the photo that was taken while they were in jail; same LOGIC. We should take a hint from Sweden they are closing its prisons. Prison should ONLY be for VIOLENT offenders that have intrinsically caused physical harm to another. Prison should NOT contain individuals for thought crimes.

Posted by: Frank Gillice BSc | Oct 7, 2014 11:52:31 AM

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