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February 18, 2009

House Republicans file brief in support of 30-year mandatory minimum sentence in Farley

Regular readers may recall a notable district court opinion from last September (discussed in this post), which found unconstitutional a mandatory minimum term of 30 years imprisonment for a defendant who travelled across state lines in an effort to engage in sexual activity with a fictious ten-year old.  The case, US v. Farley, is now on appeal before the Eleventh Circuit, and this new post from the CQ Legal Beat reports on a notable new filing in this case:

A group of House Republicans filed a brief Wednesday challenging a federal District Court's ruling that a 30-year mandatory minimum prison sentence was a cruel and unusual punishment for a man convicted of crossing state lines to have sex with a minor.

That automatic mandatory minimum prison sentence was included in the Adam Walsh Act passed by Congress to combat child sex abuse. But in September 2008, Judge Beverly B. Martin of the Northern District of Georgia ruled that penalty was unconstitutional as applied to Kelly Farley, a 39-year-old Texas man convicted of making plans to molest a 10-year-old girl.

In the brief filed with the U.S. Court of Appeals for the 11th Circuit, the GOP lawmakers say they "are particularly concerned with the lack of respect and improper deference afforded to Congress by the district court in the case" and suggest the lower court's ruling "threatens to abridge Congress' authority to impose punishment that it deems appropriate to the corresponding offense."

Thanks to the folks at CQ, the full brief can be accessed at this link.  Fascinating stuff. 

February 18, 2009 at 04:10 PM | Permalink


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This is another case that mixes apples and oranges. We penalize people who commit crimes and punish those who commit criminal offenses. These are two different ways of thinking about the same provocation, in this case “attempted aggravated sexual abuse of a minor.”

Penalties are fixed before the fact to deter potential criminals and enforced after the fact. Enforcement of penalties is mandatory; otherwise they loose their credibility. Punishments are discretionary. They are fixed after the fact to hold offenders accountable, within a range that was set before the fact, as a warning. Punishments are designed to restore respect, equity, public tranquility, and so on.

The amicus brief in this matter wanders all over the place. Certainly it is appropriate for Congress to fix a penalty before the fact, to deter people as a whole from committing this particular crime, but 30 years is ridicules. But stupidity is not unconstitutional. A sentence like this will cost the taxpayers about $1,200,000 and produce negligible results.

This brief also suggests that Congress had punishment in mind. But punishments are discretionary within a range. They cannot be fixed until after the problem becomes fully knowable. Each offense is unique.

I suspect their real concern is the risk associated with being a criminal offender, the third way of thinking about the provocation. We do not, or at least should not penalize or punish people because they are dangerous. What would that accomplish? Risk should be controlled though incapacitation, and reduced through rehabilitation if possible. Risk often changes over time for the better or worse. How can Congress say today what a persons risk will be in five years, let alone thirty years. A Risk Control Board should be given this responsibility.

Posted by: Tom McGee | Feb 18, 2009 7:41:25 PM

Gut reaction: compelling brief no one could argue with.

A few hours later, not quite as bad (the gut reaction). Most informative are the studies that concentrated on physical and sexual abuse along with abandonment/neglect. Those other two types of abuse have the same consequences according to the brief. Why don't those other children get equal protection?

As Tom points out, this one case will cost about $1,200,000. How many other children at risk of all 3 types of abuse could be helped with that money? Hundreds? Thousands? Why do Republicans think they can punish their way out of this very serious issue?

Put another way, the brief cites Navalta's Effects of Childhood Sexual Abuse on Neuropsychological and Cognitive Function in College Women a few times. Though I got the gist of it, not all of the study is clear, but this much is:

"We further speculate, however, that the apparent right hemisphere deficiency in childhood sexual abuse subjects is more directly related to a disruption in right-left hemisphere integration, which may be a consequence of early stress effects on the developing corpus callosum. If this were true, then it might follow that these individuals would benefit from efforts to foster right-left hemisphere integration. We have postulated that this might be possible through training in tasks that normally require precise right-left hemisphere interactions, such as learning a musical instrument." (p 52)

Isn't music and the arts and all that Hollyweird stuff the first things Republicans like to cut from school budgets? The point being, prevention and those other liberal programs might be of more benefit to more children. When Republicans start caring as much about those other children who don't get equal protection, then maybe it will be easier to start believing the concern is for children rather than their punishment principle. *

Indeed, isn't it Republicans who banned these drug users from pell grants and other benefits? On the other hand, maybe Republicans are reopening the door to childhood trauma as a cause for antisocial behavior because the described symptoms are very real and powerful.

* "Child abuse and neglect were associated with a 51 percent increased risk for current MDD in young adulthood. Children who were physically abused had a 59 percent increased risk of lifetime MDD. Those who experienced multiple types of abuse had a 75 percent increased risk of lifetime MDD. The risk of current MDD was 59 percent higher for those who were neglected." (from the sciencedaily.com link cited in the brief).

Posted by: George | Feb 18, 2009 8:42:57 PM

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