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February 27, 2012
Trio of notable sentencing losses by child porn defendants in Sixth Circuit
The Sixth Circuit has, just in the last two business days, handed down three notable published sentencing opinions in child porn cases. For a variety of reasons, anyone following this area of federal sentencing ought to find time to review the trio. But, as explained at the end of this post, such a review will not leave one with much confidence about modern federal sentencing justice in these kinds of cases.
Based on a too-quick review of the trio, the opinion in US v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (available here), strikes me as the most consequential because it reverses a below-guideline sentence as substantively unreasonable in an opinion that starts this way:
Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children. Under the Sentencing Guidelines, Robinson’s recommended sentence was 78 to 97 months’ imprisonment. The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment. The United States contends that Robinson’s sentence is both procedurally and substantively unreasonable. We agree that the sentence is substantively unreasonable, and vacate his sentence.
US v. Cunningham, No. 10-3092 (6th Cir. Feb. 24, 2012) (available here), covers some similar ground in the course of affirming a (within-guideline) sentence in an opinion that begins this way:
Defendant Thomas Cunningham appeals the district court’s judgment sentencing him to concurrent prison terms of 121 months and 120 months after he pleaded guilty to three child pornography offenses, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B). Defendant raises assignments of error with several procedural and substantive aspects of the district court’s sentence. Because the district court’s imposition of Defendant’s sentence was comprehensive and legally sufficient, we AFFIRM.
US v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (available here), involves a similar defendant convicted and sentenced for child porn possession, but the sentencing issues raised (and deemed waived) on appeal concerned conditions of supervised release (perhaps because the defendant worked out a plea deal in which he got only a 30-month sentence for his kiddie porn offenses).
There is so much that might be said individually about each of these cases and what they reveal about the child porn guidelines and/or appellate review for reasonableness. But I find most remarkable that these opinion create the impression that defendant Cunningham may have been the most mitigated of these three offenders, even though he had the highest guideline range (121-151 months) and received the longest prison term (121 months).
Based on points discussed by the Sixth Circuit, defendant Robinson arguably is a much more serious offender than defendant Cunningham, but he faced a much lower guideline range (78-97 months) which means that, even after today's reversal of his one-day prison sentence, on resentencing defendant Robinson is still very likely to get a much shorter prison sentence than defendant Cunningham.
Finally, because defendant Ferguson's lawyer was apparently able to put together a sweet plea deal, defendant Ferguson is now likely already out of federal prison even though there are facts set forth in his case which might suggest he could well pose more danger to the public than the others. I am not sure just how or why 30 months was set at the fixed sentence in his case, but the outcome even on appeal provides further proof that "winning" sentencing arguments at the plea bargain stage may prove much more important and even more enduring in these cases than "winning" at the sentencing stage.
Short summary: sentencing in kiddie porn downloading cases are even more of a mess than one can reasonably assess.
February 27, 2012 at 02:08 PM | Permalink
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Comments
To give a defendant basically no jailtime, no fine, no community service and a pitiable special assessment -- along with a perfunctory probationary term -- for a crime like Robinson's is just astounding.
Here's a guy with a paid subscription to CP, he gets the stuff for five years, he has thousands and thousands of pictures, and they depict elementary school age children getting raped and tortured.
A sentence of the sort the district judge imposed is a miscarriage of justice, as the Sixth Circuit saw. I think the district judge must have been reading too many reader comments on this site -- comments to the effect that there's just not that much wrong with "merely" obtaining CP, and that it's all recieved by mistake anyway, that any concern about it is silly "hysteria," and that the prosecutors are really the ones to blame because by bringing the case, they "re-victimized" the children, etc., et al.
A culture -- like the one that exists in the comments section here -- that ceaselessly minimizes and downplays this sort of thing all but invites a non-sentence sentence. When all you talk about is Nazi prosecutors, and how those of us not enamored with this material are merely scolds, puritans and prudes, this is what happens. And I don't just mean the sentence; I mean the behavior that got sentenced (if "sentenced" is the right word, which it isn't).
Well, OK guys, have at it. Your turn. Don't stop now! The problem is not the saintly defendant. The problem is the USAO, the Sixth Circuit, the guidelines, little old ladies in tennis shoes and anything else you can dream up to rehabilitate the poor, picked-upon Mr. Robinson. It's a police state, I tell you!
Posted by: Bill Otis | Feb 27, 2012 3:53:20 PM
The system worked, no? The appeals court overturned the sentence.They looked at the poor reasoning - public reasoning (or lack thereof), in writing, on the record - and rejected it. Wish prosecutorial decision making were open to such public scrutiny. Then we'd get closer to a fair system where the main actors were all accountable.
Posted by: Thinkaboutit | Feb 27, 2012 4:07:44 PM
Please, please stop calling it 'kiddie porn.' We are talking about images of the brutal rape of children as young as infants, created, collected, and viewed for the pleasure of these defendants. The flippant phrase 'kiddie porn' diminishes the seriousness of the crime.
Posted by: Law Student | Feb 27, 2012 4:13:28 PM
I think the problem is that the crime could even call for such a low sentence. I must have a misunderstanding of the federal sentencing laws. Is the statutory range really 0-9 years give or take?
Posted by: Robert Barnhart | Feb 27, 2012 4:15:03 PM
Thinkaboutit --
"The system worked, no?"
No.
The system failed dramatically when Tarnow was nominated to the bench to begin with, which was 15 years ago. Were they not doing any vetting at the White House then? At OJP? Did it occur to anyone that this guy is biased out of his gourd?
One can only wonder how many awful, but not as clearly appealable, sentences he's handed out since 1997. Would you want a person this warped judging a matter that was important to you?
This reversal temporarily fixes the immediate problem, but does nothing to fix the source of the problem.
Posted by: Bill Otis | Feb 27, 2012 4:51:12 PM
The problem is how Mr. Robinson was charged. He was charged with Possession, not Receipt. Receipt is a mandatory minimum of 5 years. Possession could be as low as 0. Who makes the decision to charge? In order to possess you MUST Receive. Why is there such a difference in the sentencing between Possession and Receipt?
Posted by: JS | Feb 27, 2012 5:15:24 PM
Bill, you know how the process works. Senator Levin and Senator Abraham approved Tarnow's selection. Abraham testified to the Judiciary Committee that Tarnow was "excellently qualified." I worked for Ashcroft at the time. If Abraham and his excellent staff vouched for Tarnow, we probably thought he was okay.
Posted by: Thinkaboutit | Feb 27, 2012 5:43:42 PM
Thinkaboutit --
Point taken, sir. Spence did indeed have an excellent staff -- the best I ever met, in more ways than one. Tarnow was regarded as very smart, and was the go-to defense lawyer in Michigan. Spence might have thought this was the best we were going to get from Clinton, and I confess I don't know of any other of Tarnow's decisions that were anything like this bad. Maybe he's just aging -- it happens (I think he's 69 now).
But when I read the case, my jaw dropped. I had largely the same reaction I did when Obama nominated a fellow to the Second Circuit whose preeminent feature was, as a district judge, to launch a tirade about how sexual sadism is a MITIGATING factor at sentencing.
Posted by: Bill Otis | Feb 27, 2012 8:48:49 PM
All of this nonsense would quell and take care of itself if these offenses were reduced from felonies to misdemeanors. How many people that are on the registry for just "possession" charges? I'm willing to bet at least 30% which is telling. If someone is not deemed "sexually dangerous," high risk or an on-going liability to society, then why waste precious time and resources monitoring and tracking these individuals? This gives new meaning to "beating a dead horse."
I do contend, however, that someone who is taking taking pictures (for prurient gratification) and disseminating them over the Internet should have to register because that shows intent, but mere "possession" is little more than a "sight" crime. If this distinction was made (because as we know every case is different - not everyone that faces these charges is a pedophile, deviant or pervert) there would a greater sense of resolution and conformity than the guidelines that are currently used.
The best way to get a bad law repealed is to enforce it strictly. — Abraham Lincoln.
Posted by: hadenuff | Feb 27, 2012 11:21:03 PM
i have to agree 1 day for 7100 images of cp is just nuts! Especial when you consider this part!
"Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children."
He KNEW he had them and they were images of not just children but children being raped and tortured! That's a whole new lvl of mental problems and yet the court in it's stupidity ordered not the FIRST DAY OF TREATMENT! i could live with no time in prison if they could show he was not involved in the production of the items. BUT should stll have had a long long period of intense supervison in lockstup with a mandatory sex offender treatment program.
but as it sits that was just NUTS!
Posted by: rodsmith | Feb 28, 2012 12:47:42 AM
Having read all three cases, it appears that the only one of these dangerous icky pervs who got a sentence which fit the crime was Cunningham. While Cunningham may not have had as many images, he still proved himself to be a dangerous pedophile who took sexual but non-pornographic photos of his girlfriend's 6 year out daughter and sent them to other pedophiles. And 10 years is definitely fitting for anyone who films himself looking at a picture of what the court described as an infant and talking about how he would rape her while masturbating - the guy obviously is a icky perv pedophile, so 10 years is a good sentence.
Robinson - the guidelines range seems insufficient for his crimes - he should also get 10 years. Maybe the psychological evaluations claim that he isn't an icky perv pedophile, but joining a pay child pron site, 7100 images, images of children in bondage and being raped say that he is still a dangerous icky perv. Maybe rather than being an icky perv pedophile who wants to rape children he's an icky perv sadist who gets off on the infliction of pain, torture, and rape of girls - but he's still dangerous and should get the above guidelines sentence of 10 years.
As for Ferguson - the opinon sounds like the images he had were images of his brother raping little boys - maybe he is not a dangerous icky perv himself, but he definitely looked the other way and kept the images and other things including things much too icky to mention to show the abuse. Hence, it is pretty clear he was at the minimum a dangerous icky perv enabler who knew about the rape of children and creation of child pron images and then kept them. It appears there was no proof that Ferguson directly created the images or raped the children - hence he was only convicted of possession, but the three year sentence is grossly inadequate for someone who appears to be that close to creation of child porn. 10 years is probably grossly inadequate - he probably should get the harshest sentence of these three icky pervs because of the connection to actual rape of children.
Erika :)
Posted by: virginia | Feb 28, 2012 9:36:26 AM
As a federal public defender, I find defending CP cases at sentencing wrenching. The guidelines fail utterly to provide a qualitative assessment of the harm, and therefore, the punishment appropriate for the crime. Rather than focusing exclusively on the often (though not always) meaningless statistic of number/type of images, the guidelines ought to focus on a sliding scale of culpability/danger: downloaders/possessors of free digital images, possessors of paid pornography/subscribers to paid CP sites, distributors of CP, manufacturers of CP (i.e. rapists and their accomplices), and repeat offenders under any of these categories. There is no excusing any person taking pleasure in images of abused children. But there is also no rationalizing a system that treats people who never reach out and physically touch a child more severely than those who commit the documented harm. All too often, defendants at what I deem the low end of the culpability scale (possessors) suffer from untreated mental health issues (particularly bi-polar disorder) that when properly addressed can be controlled to the extent that recidivism is highly unlikely. I am unapologetic in my stance that these types of offenders are better served under intensive community supervision rather than in federal prisons, but I have not found a federal judge who agrees with me. So in those cases I will continue to tilt at windmills and try to eke out the best results I can for my clients. That is, after all, my role in the justice system.
On the other hand, as a victim of childhood sexual abuse, I find defending CP cases at sentencing wrenching for different reasons. The harm done to children even when what some would call "mild" forms of sexual abuse occur is lasting and devastating. Every time I handle a CP case I am forced to recall my own history which, while far less awful than some of what is depicted in most CP, still haunts me. When I am faced with a defendant who fails to understand the harm of "merely" possessing CP, I am more than able to put the kibosh on the all-too-common sense of victimization that CP defendants feel. I explain that whether he ever laid hands on a child or not, at some point a child had to be raped or otherwise sexually abused in order to provide him with fleeting, tawdry gratification. Whether this hits home or not, you can be sure that my clients don't walk out of my office thinking they've found a fellow traveler who'll pat them on the back and say "no big deal."
So when folks like Bill Otis critique a "culture" of mindless apologia on behalf of CP defendants, I am offended. I take seriously the need to defend each case individually. That doesn't mean I apologize for anti-social, harmful conduct. And that doesn't mean I fight each case as though it be some kind of sport in which the victorious defendant scores points by encouraging judges to flout the will of Congress or societal norms. For the most part, my colleagues in the defense and prosecutorial bar recognize that justice is a messy business, and we treat each other with respect and a recognition of the importance of each of our roles to the system. The few outliers who believe, as Bill Otis seems to, that defense lawyers are devious, morally bankrupt hacks make the practice of law far less pleasant than it would otherwise be. A large percentage of federal judges are former prosecutors, while a minuscule number of former defenders are on the bench. Should I excoriate every judge who rules against me as "biased out of his gourd" simply because at an earlier time in his career he served as a prosecutor? I'd like to think better of all lawyers than that.
Posted by: AFPD | Feb 28, 2012 3:17:22 PM
AFPD --
I thought your post was sincere and thoughtful, given your view of things. It could have done without the personal stuff, of which you know zip, since you have never met me or done a case against me. Still, the personal stuff was tame as these things go (you don't want to know the number of times I've been called a Nazi), and overall was outweighed by your taking an honest crack at it.
Most defense lawyers I came across were decent, reasonable people. Some were jerks. A few were crooks. You may doubt that all you care to, but you are not in a position to know.
Posted by: Bill Otis | Feb 28, 2012 5:36:40 PM
Sex offender gets 12 years for 5,147 child-porn pics on cellphone
WHAT THE HELL???
Posted by: hadenuff | Feb 28, 2012 6:15:19 PM
@AFPD:
Thanks for your post. It inspired me to post this. I was a child pornography defendant. I was fortunate that my case wasn't taken by the United States Attorney, and so I never had to go to prison -- I got to go to law school, instead. Though, really, the only difference between me and a lot of the defendants that I read about here and those I work with at my job is that I wasn't prosecuted federally. If I were, I would probably still be in prison (and I know that a lot of people figure that people who have done the things that I have done belong there, if not worse. I once had a professor I admire greatly relay to me he believed all possessory child pornography offenses should be capital offenses. He, of course, did not know what inspired me to apply to law school and I didn't have the courage to tell him, but I digress).
I, too, know the pain that stems from child sexual abuse -- not only in terms of the market that I helped facilitate by my participation in it, but also from my own childhood. I say that not to absolve myself of responsibility for the things I have done, but to try to communicate that even despite the things that I and those in my situation have done, we're nevertheless human beings despite what politicians may say.
But, as someone who has committed a crime, I can say that I believe in the redemptive power of this criminal justice system that we have...or, at least, in its ideal of punishment and redemption. I think that the process holds the promise of bringing everyone together -- the police, the defendant, the lawyers, the judge, and the victims -- and leaving everyone better for it in the end.
From my perspective, however, it seems quite a bit different than that. I do not mean to suggest that I should not have been punished for what I did, or that harm did not result from my actions. I walked into court on the day of my sentencing resolved to accept whatever sentence the judge pronounced, that in so doing, I would make amends to society and to my victims. That by not giving the prison guards shit, that by agreeing to do whatever my probation officer wanted me to do, that by waiting patiently in line at the courthouse to pay my fines, I would be honoring that promise of punishment and redemption. So that's what I did.
But it seems to me that the reality is actually quite a bit different than what I take to be the ideal. It seems to me that a lot of the considerations that give the criminal justice system legitimacy, such as equity, fairness, proportionality, and perhaps most importantly justice have been supplanted by retributivism-run-amok. The old idea used to be that you paid your debt by serving your sentence and that, when your sentence ended, you were encouraged to rejoin society.
My sentence has ended, and I've done all that's been asked of me. It's not that I feel I should be pitied -- I know there's a reason why I was punished, and it was completely and utterly my own doing. It's that here I am on what's supposed to be the other side of my experience with the criminal justice system, and I really have a hard time seeing a way back into society, and I wasn't even imprisoned.
Maybe it's society's judgment that me and people who have done the things I've done are never meant to rejoin society. That we're meant to be permanent outcasts -- psychologically and physically. Maybe I'm the last person on earth who is qualified to talk about justice, and fairness as it applies to me (as many of our clients talk about how unjust their sentences are, too).
So if you are reading this, and as you do you start to feel like I should be an outcast forever. That I nor those in my position should have the second-chance afforded to so many other criminal defendants, just...please...ask yourself why you feel that way. I'm serious, and I mean no disrespect and I'm not trying to be flip. Because it seems to me if we really care about the safety of society, about preventing things like sexual abuse or even crime in general, we ought to ask ourselves what the appropriate balance is between punishment and redemption.
This went on a lot longer than I intended, and I thank you for reading if you have. And if you have anything to say, even if its just to say that you appreciated it or that you think I should be in prison or worse, then by all means I won't be upset or offended. I've been called plenty of names and I've had my life threatened and, after a while, it doesn't bother you anymore.
Posted by: Guy | Feb 29, 2012 10:41:37 AM
"I walked into court on the day of my sentencing resolved to accept whatever sentence the judge pronounced, that in so doing, I would make amends to society and to my victims. That by not giving the prison guards shit, that by agreeing to do whatever my probation officer wanted me to do, that by waiting patiently in line at the courthouse to pay my fines, I would be honoring that promise of punishment and redemption. So that's what I did."
Good for you. Seriously, doing those things indicates to me that you are an ideal candidate for redemption. Your case raises the problem of one size fits all registries, etc . . . I, and I think you, would prefer a system that treated people who violated those conditions and didn't treat them with respect harshly such that we would be sure the ones who succeeded did so because they deserved to succeed in completing their punishment.
Posted by: Robert Barnhart | Feb 29, 2012 10:54:33 AM
Some defendants are capable of redemption. Some will start up again the day the get out. Psychology is a poor prognosticator of which is which. The only sensible public policy discussion, then, should ask upon whom the inescapable risk of sentencing error -- too harsh or too lenient -- should fall.
Posted by: Bill Otis | Feb 29, 2012 11:35:54 AM
Guy,
I can understand your desire for anonymity on this board, but I would very much like to correspond with you. If you are interested, please email me at adamshajnfeld at gmail.
In any event, kudos on your inspiring post.
Adam
Posted by: Adam Shajnfeld | Feb 29, 2012 12:37:21 PM
hmm
"Some defendants are capable of redemption. Some will start up again the day the get out. Psychology is a poor prognosticator of which is which. The only sensible public policy discussion, then, should ask upon whom the inescapable risk of sentencing error -- too harsh or too lenient -- should fall."
Horse pucky!
Once apon a time american justice went by a simple saying "better 10 guilty men go free than 1 INNOCNET man be imprisoned"
Now we have went almost the exact opposite!
Sorry bill but your wrong
Yes we need to have a balance between the individuals rights and what society needs to survive. BUT if we don't find some way to move ex cons BACK INTO society where they can have a REAL LIFE and not an illegal after the fact LIFETIME PAROLE. Then they have no reason to play nice in any way what so ever and the way we are MANUFACTURING criminals as the newest round of school shootings prove. SOONER or later they will outnumber us and then they will bring society down around our ears and then make THEIR OWN and WE WILL BE THE OUTCASTS!
Posted by: rodsmith | Feb 29, 2012 3:27:15 PM
@ Robert:
I would agree with that, and I think that's why our criminal justice system would treat people who commit repeat offenses more harshly than first-time offenders. I would certainly prefer a system that was calibrated a lot more sensitively, or at least offered people who were genuinely interested in it a path towards redemption. As it stands, for felony cases and *especially* for sex crimes, there seems to be no such path. You're basically marked as a criminal for life.
@ Bill:
The way I see it, redemption and rehabilitation are two different things. Rehabilitation is an internal thing (i.e. whether or not one makes the same sets of decisions that led to the predicate offense) whereas redemption is an external, societally-based idea. I agree with you that some defendants do repeat, and some don't, but my opinion is that the discussion about where the externalities as they relate to sentencing should fall isn't as clear cut as if it's too lenient then victims suffer and if it's too severe then offenders suffer.
I could well be totally wrong, but my experience and the experience of other people I've talked to is that when sentencing policy favors retributivism over all else, then I think in some real way, in the eyes of the offender, the sentencing authority loses legitimacy. When the courts and the police and government lose legitimacy, and when there's no real obvious path to reintegrate, then the only thing keeping people from doing as they see fit is the threat of punishment. Only problem being, if you don't care anymore about punishment since there's no way out to begin with, then I think when you veer towards being overly harsh in sentencing policy, you only create more victims. You create a criminal underclass that instead of seeking to rid themselves of their troubled past, embrace it and wear it as a badge of honor.
And believe me when I say that it's not that I think there shouldn't be punishment, or that punishment should be fun. Like I said, I believe in punishment, but I think that needs to be counter-balanced with a definite end to that punishment and then allowing that person to reintegrate. I agree with you absolutely that some people won't reintegrate, some people will re-offend, and that's why the punishments get ramped up as we go along. I think that by making things so very severe on the front end, though, even for first-time offenders, you end up creating a lot more harm than you would otherwise.
And Bill, I know I've been wordy but I'll just say this: I know you and I disagree on a lot, but I believe in what you do. Society needs good police and good prosecutors (just as they need good defense attorneys, which is what I hope I'll be should I be allowed to take the bar exam) -- so I guess I just want to say I think we're really on the same side of this issue. Neither of us wants more victims or more crime, we just may see the road to getting there differently.
Posted by: Guy | Feb 29, 2012 3:40:20 PM
Guy --
The only thing I can say is that if the defendants I dealt with had your mind and heart, I would have reached conclusions different from the ones a considerable amount of experience has forced upon me.
I wish you the best. I appreciate your balance, maturity and sincerity. Regardless of one's substantive beliefs, if commenters approached one another in the spirit you have shown, this site would be a different experience.
Posted by: Bill Otis | Mar 1, 2012 2:28:49 AM
