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January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 at 02:25 PM | Permalink

Comments

Kudos to Judge Weinstein!
There are so many others like the defendant in this case who download Adult porn only to find there is unwanted CP in the mix, but by then, it's too late, 5-10 yrs behind bars. This guy didn't seek out CP, it found him.
I'm sick to death of attorney's like J. Freeman, who represent CP victims in order to get restitution (which I'm sure makes the attorney some big bucks) constantly putting their two-cents in when a judge who's got it right, makes a ruling. She spouts that "basically he (the judge) is saying it's not worth too much punishment". I don't believe the judge is saying that at all. The people who made the porn, the people who put it online, they're the ones she needs to direct her anger towards, not the judge who's trying to make sense out of nonsensical punishments, nor the defendant who fell into this pile of crap while looking at adult porn.
If there were more judges like Judge Weinstein who were willing to stand up and admit the severe punishments for non-production CP need fixing, the world would be a better place.

Posted by: kat | Jan 30, 2016 3:13:55 PM

Given the mandatory minimums (which are not going away anytime soon), decisions like this really just create an incentive for prosecutors to never bargain down from a distribution count to possession.

Posted by: Jay | Jan 30, 2016 3:54:59 PM

@Jay.

That's a good point. It also illustrates how the distribution/possession distinction which Congress lifted from the drug wars no longer makes sense in digital child pornography cases because today child porn is shared via P2P networks, where it is difficult to possess without likewise distributing. So almost every possessor of child pornography is going to be a distributor of it. Since that is true, what charges a prosecutor decides to bring isn't going to vary based upon any behavioral distinctions of the offender but upon something unconnected to the law.

Posted by: Daniel | Jan 30, 2016 4:19:33 PM

I agree that the guidelines are too high for mere possession of child pornography. The offense level is raised for ordinary use of a computer, and for the number of images, even though one can download hundreds of images in a short period of time. However, this defendant's explanation is BULLSHIT. It is virtually impossible to inadvertently stumble across child pornography. It is beyond credulity that it "kept popping up." It is clinically unfathomable that anyone who magically managed to experience this constant barrage would keep it on their computer and offer it for download through a P2P shared folder
(not to mention move some of the files to a thumb drive) if they were not aroused by it.

The New York Journal article also mentions that defendant's downloading behavior spanned a year.

The sentencing commission (often prodded by an hysterical congress) has forfeited it's credibility. Judge Weinstein has forfeited his as well. What a mess.

Posted by: USPO | Jan 30, 2016 7:54:16 PM

@USPO -- Yeah, this guy also pretended to be a teenage boy in chats with minors, and participated in video chats where teenage girls performed "sexual acts." I think the government will probably appeal this and has a good shot of prevailing.

Posted by: Jay | Jan 30, 2016 9:09:49 PM

Thing is, the idiotic guidelines don't take into account things like his other predatory conduct in establishing the sentence.

The Commission didn't forfeit its credibility, Congress mostly ordered this idiocy.

Also, the harsh restitution laws pending in Congress, ON TOP OF THE CRAZY, DISPROPORTIONATE SENTENCING just make this whole area a travesty.

Ultimately, I think we are going to find that there is a sort of "internet addiction," whereby downloaders just become inured to all sorts of gross, disgusting stuff without having any signs of actual pedophilia. In any event, these guidelines need adjustment. Multiple offense armed bank robbers get lighter sentences than these cats.

Posted by: Fat Bastard | Jan 31, 2016 10:37:59 AM

Quick question for the legal pundits, I forget what my lawyer said exactly at the time - and I am not going to bother her over something trivial at the moment - but is a judge's sealed SOR ever unsealed or accessable? I too was a federal case for straight posession of CP with no jail time, 5 years probation, and while I have all the case paperwork I can't get the SOR on pacer. Thanks in advance!

Posted by: chris | Jan 31, 2016 1:59:50 PM

It's never unsealed (so it won't be on PACER), but it should be available to the parties. I would just ask your lawyer. If that doesn't work then write a letter to the court.

Posted by: Jay | Jan 31, 2016 2:36:06 PM

"I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images."

One can be opposed to child pornography and still recognize that this statement shows an appalling misunderstanding of how the laws of physics work.

Posted by: C.E. | Jan 31, 2016 4:44:16 PM

C.E.:

Yet the Supreme Court has ruled that mere viewing of an image causes an economically quantifiable harm to the victim.
Physics is a difficult subject.

Posted by: USPO | Jan 31, 2016 7:47:26 PM

@USPO

The Supreme Court has held many things that were later overturned by other Supreme Courts. So making an appeal to it as an authority is not only a logical fallacy, it's bad rhetoric because SCOTUS is bad authority for any non-legal proposition.

Posted by: Daniel | Jan 31, 2016 8:41:12 PM

What about the pervert that uploaded the child porn?

Posted by: LC in Texas | Jan 31, 2016 8:54:24 PM

Beware of opinions with table of contents.

Posted by: Joe | Feb 1, 2016 1:09:55 AM

Anytime a judge sentences based on politics or personal feelings like Weinstein does we are all in trouble. This Judge is a disgrace...He does this routinely and kids are going to be harmed by this decision. R.V should be in jail for several years...saying oops im sorry should not weigh once iota. Weinstein proves why the nomination of Judges is a political hand grenade today. Lets hope prosecutors appeal and 2nd circuit throws this out.

Posted by: DeanO | Feb 1, 2016 8:25:55 AM

Deano writes "Anytime a judge sentences based on politics or personal feelings like Weinstein does we are all in trouble. " But, unless compelled by a mandatory senence, every judge sentences to some extent at least based on politics or personal feelings. That's what discretion encompasses. Without it, you have sentencing by computer.

Posted by: Dave from Texas | Feb 1, 2016 8:56:22 AM

I basically agree with Dave from Texas -- judges should act within a certain window of reasonable judging and the system hopefully will encourage that sort of thing, but HUMAN judges will be affected by human emotions, politics etc. This is encouraged by the process of judicial selection by political actors. The same sorts of people, even if they on the merits have a lot of qualifications, are not likely to be chose by Democrats and Republicans, though there is overlap and in many cases such things don't come out.

Posted by: Joe | Feb 1, 2016 9:56:13 AM

Does anyone (including Judge Weinstein) expect this to result in anything other than an appeal, reversal, and reassignment to another Judge?

And does anyone think that Judge Weinstein is actually writing opinions any more? His hundred-plus page treekillers read like the unedited work of a recent law grad. All the pieces are there, but they're clearly assembled by a recent student, not an experienced judge.

Posted by: Curious | Feb 1, 2016 11:25:27 AM

District court judges have a lot more tasks to do including holding trials. I would think many of them, including those almost half this guy's age, delegate a lot of the writing of opinions to clerks. But, these tomes are a tad excessive.

Posted by: Joe | Feb 1, 2016 11:31:04 AM

I was in a room full of people who were staring at some human hanging on a cross half naked and clearly dead. It think that they should go to jail just like these so called porn viewers.
They kept calling the dead guy Hey Zeus.

Posted by: Liberty1st | Feb 1, 2016 10:29:15 PM

Daniel:
You may have missed my sarcasm, or I did a bad job of conveying it. I was agreeing with C.E.

Posted by: USPO | Feb 2, 2016 10:32:15 AM

I have problems with statements like this, which are declarations, without any citation of authority, and in my experience is contrary to what I see as a prosecutor:

"Child pornography viewing is played out against a primal parental fear of pedophiles harming their children. While there is a degree of overlap between child pornography viewers and child molesters, most non-production child pornography offenders—and particularly the one now before the court for sentencing—show no mens rea suggesting the likelihood of future harm to children." (Slip. Op. at 2)

There is also a distinction between believing the possession guidelines are "too harsh" and are "too blunt a tool" to distinguish among defendants, and imposing what is essentially a non-custodial sentence. An individual who takes gratification from the sexual abuse of children, especially prepubescent children and younger, has demonstrated that he (it is almost always a he) a danger to the community. Does it mean he deserves a sentence of 10+ years absent other aggravating circumstances, no, not necessarily, but at the same time it doesn't make an essentially non-custodial sentence reasonable either.

Posted by: GrizzlyBear | Feb 3, 2016 12:10:52 AM

Grizzly Bear: in what way have they proved they are a danger to the community? How much harm can one man cause sitting secretly in the dark of his home looking at pictures and videos that were created well before he ever logged on?

Posted by: Justin | Feb 4, 2016 1:01:15 AM

My son is facing a 5 years in a federal prison for acepting a plea agreement and plea guilty for transportation of CP for using a P2p program... My question is can he present a copy of this case to see if the judge can give him a short sentence and a fine instead of the 5 years minimum mandatory Get back to me before may 25 2016. Thats my sons sentencing day

Posted by: Concern father | Mar 28, 2016 3:53:32 PM

A new decision by Weinstein: http://www.newsday.com/news/new-york/convicted-child-molester-should-be-sent-to-medical-facility-brooklyn-judge-says-1.12106867

Posted by: US v DW | Jul 29, 2016 6:25:10 PM

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