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August 24, 2014

Will third time be a charm in federal sentencing of child porn defendant Richard Bistline?

Regular readers and those who follow closely federal sentencing of child pornography offender will recall the name Richard Bistline: as detailed in posts linked below, the Bistline's sentencing created a kind of battle royale between US District Judge James Graham and the Sixth Circuit.  This coming week, as reported in this Columbus Dispatch article, Bistline is scheduled to be resentenced yet again, this time by a different district judge after Judge Graham's prior sentences were twice found to be substantively unreasonable by the Sixth Circuit.  Here are excerpts from the Dispatch article providing the backstory:

Are federal sentencing guidelines for possessing child pornography too harsh?  Calling the guidelines “draconian,” U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.

Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. “The purveyors or producers of these images deserve the most severe punishment we can give them.  My concern is the people who end up possessing it.”

Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession.  His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison, 30 days of home confinement and 10 years of probation.  The recommended sentence under federal guidelines was five to six years.

Assistant U.S. Attorney Deborah A. Solove appealed Graham’s sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense.  The appeals court ordered Graham to resentence the defendant.  But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years.  Solove again appealed, and the 6th Circuit court again ruled that Graham’s sentence was too lenient.  The court removed Graham from the case.

Judge George C. Smith is to sentence Bistline on Wednesday....

Graham says the guidelines for child-porn possession are outdated.  Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way.  Adding points for possession of numerous images is unjustified because “current technology produces numerous images with one key stroke or mouse click,” he said....

In its second Bistline ruling, the appeals court wrote that possessing child porn “is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person.”  Possession becomes a crime “when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year."

Graham isn’t alone in his contention that the guidelines are outdated.  A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders....

Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences.  Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.

Graham said most of the child-porn-possession defendants he sees have no previous criminal record and “are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today’s society, affecting people of all ages.”  Just by being found guilty, he said, they face ruined lives, for both themselves and their families.  “They need to stop it,” he said. “The men who are doing this are going to get caught.”

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Comments

Why do they have to keep dragging him through all this again and again, all because someone doesn't like how a judge rules? I myself received a sentence of 5 years probation with no jail time a little over a year ago for the same charges in the Fourth Circuit and had no issues. Do they have so much time on their hands in the Sixth that they can continue to keep doing this over and over? Let the man move on and try to be productive in society, let him try to better himself...that should be their goal.

Posted by: Chris | Aug 25, 2014 9:41:21 AM

Possessing child porn is vastly different from distributing or producing it, Graham said.

I'm glad he had the fortitude to make this distinction that should be common knowledge in the first place and not let the emotionally biased ramblings of the child-safety advocates establish their version of truth.

But they have argued in numerous cases over the years that the pornography would not be produced if there were no market for it, so those who possess it are creating a market for the images.

This really is a low-effort argument, especially for the sexting cases. Also, the "re-victimization" argument is another time-honored chestnut they like to play.

Possession alone should not be a registrable offense. Especially since contact crimes receive far less prison time. If someone is attracted to children, they might as well touch a child and realize their full potential because possession is somehow equated as being more culpable.

Posted by: Lance Mitaro | Aug 25, 2014 9:50:40 AM

I have no more use for relentless, hyper-ambitious prosecutors like Solove and her bosses -- for whom simply ruining lives isn't punishment enough -- than the pathetic souls whose predispositions and inclinations lead them to view/possess CP.

Judge Graham emerges from this typically American witch-hunt story as the wise, brave, guileless voice of reason.

Posted by: John K | Aug 25, 2014 9:51:08 AM

When will the defense in these cases utter the word, Daubert?

Posted by: Supremacy Claus | Aug 25, 2014 11:15:10 AM

But they have argued in numerous cases over the years that the pornography would not be produced if there were no market for it, so those who possess it are creating a market for the images.

Using this logic, every marijuana smoker and coke sniffer should be held to the same standards as drug kingpins who torture and murder innocent women and children through the protection of their cartel territories.

Or, more pertinently, every DUI offender should be sentenced to the same sentences that DUI murderers from the carnage they produce in their accidents.

Posted by: Eric Knight | Aug 26, 2014 4:25:58 PM

It's not surprising that sex offenders receive lifetime punishments. We live in a nation of victims, where no one who is victimized is capable of overcoming the bad things which sometimes happen in life.
We all experience life-changing events is up to us individually. No amount of punishment for perps of sex crimes will change the the outcome for the victim.

Posted by: oswaldo | Sep 3, 2014 9:30:25 AM

I understand that some readers will be fuming with anger, reading a “defense of pedophiles, child abuse, and child abusers”. I almost fell prey to the worldwide child porn hysteria voodoo logic brainwashing. It is based on 2 fallacies

1. confusing the crime with depiction of a crime:
You watch a movie of a plane flying into the World Trade Center. Therefore you are a terrorist and re-victimizing 3000 people who died

2. Confusing child pornography and “child pornography”. Confusing “child porn” as defined in the old days (involving a “real child under 12″ and “real porn with real penetrative sex” and “modern child porn” which might be as harmless as a 22 year old (that looks “apparently underage” like she might be only 17 years old) non-nude in leotards dancing while gyrating her hips provocatively). Can you understand now we insist that lots of modern so called “child porn” has no victim at all and is not offensive to sex positive people.

Can watching a photo or video cause harm to a far away “victim” that is unaware of the watcher? Examples:

1. Someone downloads and watches child porn, with 16 year olds, produced legally in Holland 30 years ago. The act of watching a movie in the USA somehow causes a jolt in the now 46 year old person in Holland and victimizes her!? Human-Stupidity.com verdict: Scientifically impossible.

2. Someone downloads and watches a child porn photo from the 1950's The persons depicted already died 20 years ago. Would their mortal soul be victimized, be it in heaven, hell, or purgatory? Maybe their soul keeps constant watch about all copies of their photos? Human-Stupidity.com is too ignorant about religious claims of life after death. Verdict: Scientifically it is impossible for a dead person to get harmed by someone’s copying of a computer file

3. Someone downloads and watches a copy of a legal American porn movie with Little Lupe who was 19 years old but looked under 18. This is child porn by European and Australian laws. Little Lupe will happily earn a commission from the person’s subscription fee. We fail to understand how Little Lupe would be a victim! She is a consenting adult and made a conscious carreer choice and is profiting from people downloading her films.”Apparently underage” laws were struck down by US courts for violating the civil rights of young looking adults by preventing them from participation in legal porn movies (for “apparently looking underage” though over 18. Verdict: the adult “victim” benefits and profits from downloading. No victimization

http://human-stupidity.com/stupid-dogma/child-porn-witch-hunt/watching-child-pornography-victimizes-child-voodoo-science

Posted by: Tiglath Philizar | Jan 29, 2015 8:47:31 AM

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