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June 15, 2016
Split Second Circuit panel reverses (on procedural grounds, sort of) 60-year sentence for production and possession of child porn
A few helpful readers helped make sure I did not fail to note the interesting split Second Circuit panel decision handed down yesterday in US v. Brown, No. 13‐1706 (2d Cir. June 14, 2016) (available here). Here area key passages from the majority opinion authored by Judge Pooler explaining its (procedural?) basis for reversal of a 60-year prison term (with most cites omitted) for the production of child pornography:
At sentencing, the district court noted “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their li[v]e[s]” about the photographs, and that Brown “destroyed the lives of three specific children.” App’x at 100‐01. The district court’s explanation suggests that the 2 individual harm suffered by each of Brown’s three victims played a critical role in the district court’s decision to impose three consecutive 20‐year sentences. But the sentencing transcript also suggests that the district court may have misunderstood the nature of that harm as to Brown’s third victim. Three times the court emphasized the mental anguish that “three specific children” would suffer as a result of Brown’s abuse. App’x at 100‐01. Brown’s third victim, however, has “no knowledge of having been victimized by Brown.” PSR ¶ 35. Her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.” PSR ¶ 51. To be sure, the district court was entitled to punish Brown for that abuse regardless of whether the victim was aware of it. But given the district court’s repeated emphasis on the fact that Brown had destroyed the lives of “three specific children,” we conclude that it is appropriate to remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.
It is possible that, on remand, the district court will reimpose the same 60‐year sentence that it imposed at the original sentencing. Although we express no definitive view on the substantive reasonableness of that sentence at this time, we respectfully suggest that the district court consider whether an effective life sentence is warranted in this case. We understand and emphatically endorse the need to condemn Brown’s crimes in the strongest of terms.
But the Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)....
The sentencing transcript suggests that the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children, stating that Brown’s crime was “as serious a crime as federal judges confront,” App’x at 101, that Brown was “the worst kind of dangerous sex offender,” App’x at 102, and that he was “exactly like” sex offenders who rape and torture children, App’x at 100. Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior.”...
Finally, to the extent that the district court believed it necessary to incapacitate Brown for the rest of his life because of the danger he poses to the public, we note that defendants such as Brown are generally less likely to reoffend as they get older.
Judge Droney authored a lengthy dissent, which gets started this way:
The majority simply disagrees with the length of the imprisonment imposed upon the defendant by the district court, yet it cloaks that disagreement as procedural error. There was no procedural error, and the sentence was well within the discretion of the district court. It was also appropriate. The defendant sexually abused at least three very young girls, recorded that abuse, installed secret cameras in public areas where children changed clothes, and possessed over 25,000 images of child pornography on his computers, including many scenes of bestiality and sadistic treatment. No doubt this was a lengthy sentence, but it was warranted.
I dissent. The district judge committed no error whatsoever— procedural or substantive.
June 15, 2016 at 03:35 PM | Permalink
Comments
But the Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)....
The judge who wrote this is a moron. That's right, a moron. First of all, this doesn't apply to adult criminals. Second of all, Graham doesn't intend that murder always gets more than any particularly heinous criminal sentence. It is painfully obvious to anyone who thinks for more than one second that murderers aren't necessarily more culpable than other criminals. Many murderers made one horrible decision in the spur of the moment--this guy took the time to plan his deeds and harmed more than one person---the damage may be less, but from a strictly moral standpoint, his character is far worse than many murderers'. (And I am not even mentioning felony murderers.)
The use of this quote points up a real problem with our legal culture--the Supreme Court made a bogus statement to buttress a bogus decision, and no one calls out the stupidity of the categorical statement--and no one calls the Court out--the Justices signing off on this ridiculous quote ought to be ruthlessly criticized. As a polity, we are forced to trust their wisdom in divining the "evolving standards" and we cannot even trust them to understand that culpability is not just measured by the results of a criminal act and that therefore, the "categorical" qualifier is not just dumb, but also demonstrates that they don't even know the basics. No big deal? Well, now we have some idiot 'rat Judge taking this mischief further to hook up an appalling criminal.
Posted by: federalist | Jun 15, 2016 6:06:20 PM
So in your world, considering only this Def in only this case--as is necessary when crafting an appropriate sentence under 3553--if the Def in this case had actually killed the kids instead of only taking dirty pictures, he would "deserve" what: 60 + cancer? Where's the incentive to leave them alive? There has to be a continuum, because we just can't seem to build enough prisons to please the terminal haters in the world.
Posted by: MarK M. | Jun 16, 2016 1:44:07 AM
The F.B.I. once stated that they don't publish the pictures of unknown child porn victims to locate the children because doing so could risk the child's life. That is enough to distinguish the crimes. The court could be saying a 40 year sentence would send as powerful message and would not be as easy to equate to a murder sentence, though many murder sentences are far less. What is troubling to me is the claims that the lives of these children are over. How can that be known? And why isn't it a "be careful what you wish for"?
Posted by: Anon | Jun 16, 2016 3:21:14 AM
The canard that the lives of victims of abuse are effectively over or that they are permanently damaged has always troubled me. In my view, it undermines the self-determination of the survivor for the sake of justifying the lust for punishment on the part of the speaker.
I was raped as a child, and I think were I to be told that my life was effectively over or that I was forever damaged it would have hindered my own recovery process than if I were simply helped to heal and get past it.
So that isn't to say that people are not harmed, or that punishment isn't warranted. But to the question of why sentences for this stuff are so severe, the response so often seems to be that it is because the victim was effectively murdered by the actions of the perpetrator -- when such a conclusion may not be, in fact, serving anyone's interests but the state.
Posted by: Guy | Jun 16, 2016 9:22:55 AM
Mark, once again, the difficulty in dealing with liberals. "in my world"--well, in my world, I don't have a specific opinion on every single sentence that comes down the pike--that's what we have judges and PSRs and the criminal justice system for. I haven't reviewed any of that. What I was commenting on was the utter stupidity of the "categorical" statement that was quoted in the majority opinion. Of course, you cannot defend that idiocy (or arrogance), so you change the subject to some debate over what this filth gets. Whatev. Suffice it to say that I agree with the dissent on the law---would I as a sentencing judge have handed down a 60 year sentence--probably.
Of course, I have to call out your euphemization of the crimes involved here--he didn't just take dirty pictures, he took dirty pictures of kids and he molested them. He abused a position of trust. Why would you euphemize such awful crimes (note the plural)?
As for the incentive to keep them alive--I understand that point, but my guess is that since child molesters know that their prison life (if the state sentences them) is going to be hell (try doing 10 years in Stateville), the incentive to kill kids is already there in abundance.
"There has to be a continuum, because we just can't seem to build enough prisons to please the terminal haters in the world." This is dumb. Putting aside the "terminal haters" nonsense--yeah, I want to see CP producers hammered because it is an awful crime, the continuum thing is possibly true in the abstract (although it doesn't take into consideration other factors, like character of defendant, premeditation, motive etc.), but if we are to try to implement on a granular level, it becomes a race to lenience. Olu Stevens handed out a sentence of probation for an armed home invasion robbery--does that mean that no one who steals a car can get jail time? This stuff is obvious--yet you pontificate in your moralistic tone. The sad thing---you don't realize how ignorant you are. You'll euphemize awful crimes to try to win a point. I'd laugh, but your ignorance is sad.
Posted by: federalist | Jun 16, 2016 10:00:15 AM
I have no moral problem with a 60-year sentence for a defendant who molests multiple children and produces child porn. This guy pled guilty, though, and if defendants who plead guilty are given de facto life terms anyway, then why plead? Given the sentences that are being handed out, why shouldn't everyone accused of such crimes go to trial, put the government to its proof and make the kids relive their abuse on the stand? After all, it's not like a 110-year sentence is any different in practical terms than 60 years, and maybe lightning will strike. It seems to me that people who plead guilty ought to be given some light at the end of the tunnel even if the light is a long way off.
Posted by: azazel | Jun 16, 2016 1:28:55 PM
"So that isn't to say that people are not harmed, or that punishment isn't warranted. But to the question of why sentences for this stuff are so severe, the response so often seems to be that it is because the victim was effectively murdered by the actions of the perpetrator -- when such a conclusion may not be, in fact, serving anyone's interests but the state."
Strawman argumentation--no one credibly suggests that victims' are effectively murdered, although child molestation can be very devastating to a family. The point is--people who do what this guy did are profoundly evil, and they deserve serious time. There is no reason for this guy to walk the streets. And good grief--the content he downloaded--god, to think that some child had to go through those things. Heartbreaking.
Posted by: federalist | Jun 17, 2016 11:17:24 AM
