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July 31, 2015

ABA Journal spotlights continued child porn federal sentencing challenges

This article in the August 2015 issue of the ABA Journal, headlined "Minors Sentence: Courts are giving reduced terms to many child-porn defendants," provides an review of the enduring difficulties federal courts face when sentencing certain offenders convicted of using new technologies to download illegal dirty pictures.  Here is an excerpt:

Courts’ reaction to child pornography sentencing is part of a pushback against sentencing guidelines after U.S. v. Booker and U.S. v. Kimbrough, two Supreme Court opinions filed in 2005 and 2007 that found the federal sentencing guidelines advisory, not mandatory. As a result, courts have undercut child pornography sentencing guidelines when the images are taken from P2P programs.

According to one study cited in a 2012 U.S. Sentencing Commission report, 85.3 percent of child pornography distribution convictions in the first quarter of fiscal year 2012 involved P2P programs. Of offenders who used the programs, 55.6 percent distributed images solely with an open P2P program.

The study also found that the rate of known sexual recidivism for nonproduction offenders was 7.4 percent. The agency suggested that Congress revise the nonproduction child pornography sentencing scheme, because crimes stemming from downloads involve less culpability.

If prosecutors think that a child pornography defendant’s mental health contributed to the crime, and that the individual is sincere about rehabilitation and is not a child predator, they will agree to diminished incarceration plea agreements, says Raymond Cassar, a Farmington Hills, Michigan, defense lawyer....

One such case involved Nicholas Dubin, who has Asperger’s syndrome. According to a government sentencing memo, the FBI logged on to a P2P network in 2010 and identified 12 files on Dubin’s computer. More than half contained child pornography. The government obtained a search warrant for his home and found “several hundred to 1,000 images” of child pornography on his computer....

At the time of his arrest Dubin was the dean of students at a high school. In 2013, he pleaded guilty to one count of child pornography possession, and his sentencing range under the guidelines was between 97 and 120 months. The government, however, agreed to sentence Dubin to one day in federal custody, with credit for time served, and five years of supervised release. A 2013 sentencing memo submitted by the Eastern District of Michigan’s U.S. attorney’s office notes that people with autism spectrum disorders often have limited intimate relationships. The document also asserts that Dubin, who had no prior criminal record, was remorseful about his actions and had focused his therapy to understand why his crime was harmful.

“A sentence of one day time served does not, in any way, adequately reflect the seriousness associated with the possession of child pornography,” the government wrote. “However, in this exceptional case, a noncustodial sentence will effectively promote respect for the law and provide just punishment.”

To some, child pornography offenders may not seem as dangerous anymore, because their profile has changed, says Melissa Hamilton.  A visiting criminal law scholar at the University of Houston Law Center, her research focuses on violence, sex crimes and sentencing. “Going to a physical location and buying child pornography off the shelf or sending away money to get it by mail,” she says, involves more culpability than searching for it online.  The sentencing guidelines, she adds, were written before the uptick in prosecutions involving child pornography from P2P programs, and it’s unlikely that they’ll change in the near future.

“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says. “I have noticed some instances where very senior judges, who are reflecting [on the defendants they sentence] sometimes write long opinions saying that the child pornography downloaders don’t look as scary and risky, in terms of other violent offenders before them.”

July 31, 2015 at 08:22 AM | Permalink

Comments

“It’s a political hot potato to say that people who view child pornography aren’t that dangerous,” Hamilton says.

A vile feminist lawyer will destroy your life, as they did the campaign of Herman Cain, the smartest Republican candidate in 2012.

Posted by: Supremacy Claus | Jul 31, 2015 8:43:58 PM

I'm not quite understanding why the government has treated this as an "exceptional case" that merited only 1 day in federal custody and credit for time served as well as 5 years supervised release, while many other "exceptional" cases result in 5-10 mandatory minimums.
Is it because the accused has Asperger's? He must be very high functioning on the autism spectrum since he was Dean of Students at a High School. And what does the fact that "people on the autism spectrum often have very limited intimate relationships" have to do with his downloading CP, are they saying it's Ok for him because viewing sex is his substitute for having relationships?

There are plenty of incarcerated young men with no prior criminal record, who are remorseful for their actions and who would have gladly gone to treatment to focus on the error of their ways. A non-custodial sentence would have effectively promoted respect for the law and provided just punishment for them as well. But, instead, those young men are serving long sentences for having a lot less porn on their computers than Mr. Dubin, and the government does nothing, changes in CP laws keep getting put on the back burner.

While Asperger's is a very challenging disability to live with, it sounds as though Mr. Dubin was highly educated and functioning at a very high level, I just don't see why he got the free-ride that he did while others, less culpable, are rotting in prisons. Was Mr. Dubin also allowed to keep his job, working with children and did he have to register as a SO.? Would be interesting to know.

Posted by: kat | Aug 1, 2015 11:22:44 AM

So why is it that everyone is so upset about this ruling?

Is it that we want to standardize the sentencing of every CP dowloader?

I thought that was why we had a "Judge" his/her job was to sentence the guilty based on facts presented at trial. When the hell did that change? If a judge cannot way in on his/her decision about punishment.....then we don't need JUDGES.

We have gotten way from the reason for a person to full the job of a judge any more. Get government out of the courtroom!

Posted by: Book38 | Aug 1, 2015 7:26:09 PM

I am the father of a son who is diagnosed with Asperger's Syndrome, along with a diagnosis of a co-morbidity of an anxiety disorder. My son is also awaiting a charge of downloading CP from a P2P file sharing program. For over 3 years now my son has been going to a sexual offender group therapy class. I am my son's official approved supervisor. I can tell S.C. that, after raising my son, and after much research on my son's particular vulnerabilities, that this is another glaring reason why the courts should drop mandatory minimums for any crime. My son was on the dean's list one semester in high school, and on the dean's list one semester in college. He has never been in any trouble whatsoever with the law. My son has never even touched a girl. My son also has undeveloped interpersonal skills and is very socially awkward around girls. The courts have an equal responsibility to society AND the accused for a fair and just sentence. A sentence that results in the protection of society AND a sentence that also focuses on the responsible rehabilitation of the accused based on the accused particular background and level of culpability.

Posted by: tommyc | Aug 2, 2015 10:56:17 AM

tommyc:

It is a terrible plight that your son has harmed no one and is in the clutches of the "Justus" system. Real perpetrators like WJC, MF, JW etc. get a free pass for whatever reason, in fact, even claim that they are protectors of the innocent (Look at Me). Well, I am looking and what I see is BS.

MMs are as much an abomination as many of the crimes we're trying to prevent.

Posted by: albeed | Aug 2, 2015 1:27:54 PM

I'm one of the odd ducks on this blog who still think that MM are good things, one of the areas where I agree with Bill O. To me, attacking MM are a convenient stalking horse for those who want to avoid the political hot potato that are sex crimes. People who attack MM hope that the judges solve the problem quietly rather than confront a political solution to the problem. But I think that approach is ass backwards.

The problem is not that there are MM. The problem is that MM often do not reflect the real seriousness of the crime /as a normative matter/. Rather, MM are a way to feed "incarceration nation". This is also way I remain a skeptic about sentencing reform in general. Th real problem is over-criminalization and until that reality is confronted there will be no progress.

Posted by: Daniel | Aug 2, 2015 4:30:20 PM

A political hot potato? More like a third rail. We should stop pretending this is about individual victims; it's mostly about defending the sacredness of children in general. Weighing costs and benefits is only sensible when we understand what the costs are. In this case, the main perceived cost is iniquity and sacrilege against holiness. That utilitarians do not acknowledge this kind of cost does not mean most folks live in their bubble.

Perhaps the stage is set right now not just for no action, but for Donald Trump-like characters to exact a righteous vengeance on anyone guilty of these crimes.

Posted by: citizen | Aug 2, 2015 5:59:25 PM

First off CP is an odd name the federal DEFINITION of child porn can rage from an infant being abused to a nude selfie of a 17 year old 364 day person who never shared the photos.

Clearly, however the case of AP is odd, if the person is bright they should of course know that CP can get you into serious trouble although again an infant vs. 17 year old selife meets the same definition. Of course just because a person is bright doesn't excuse one from a crime, a person could be bright and have an odd mental state.

Also P2P programs automatically distribute files and in order to download a file, you don't necessarily click on the actual file, rather a file that points to others who have the file and also folks may mislabel their files and one can get caught in an innocent bind with spyware,viruses,etc.

Posted by: alex | Aug 4, 2015 12:54:10 AM

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