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NY Judge Rejects Mandatory Minimum in Child P*rn Case

By Jeralyn

U.S. District Court Judge Jack Weinstein is on a mission. It's not his first. He frequently fights what he calls "the unnecessary cruelty of the law.”

Judge Weinstein was in the news today for his latest crusade which has lasted three years, finding ways to avoid imposing a five year mandatory minimum sentence for a defendant convicted of receiving child p*rn on his computer.

Judge Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed “no risk to society.”

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Judge Weinstein explains his position:

“I don’t approve of child p*rnography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.

“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

He's not the only judge balking at the lengthy sentences:

In one recent case, James L. Graham, a United States District Court judge in Ohio, sentenced a 67-year-old man who had suffered a stroke to a single day in prison, along with restrictions on computer use and registration as a sex offender. As part of a deal with prosecutors, the man had pleaded guilty to possession of child p*rnography, which carries no mandatory sentence.

“When you have to sit there on the bench and look at someone like my stroke victim and say, ‘I have to send this man to prison for six years,’ it just doesn’t feel right,” he explained in an interview. “It’s not right.”

Last week, the Second Circuit tossed a 20 year sentence in another case, holding:

....[T]he sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.

How did we end up with the five year mandatory minimum sentence for receipt of child p*rn and restrictions on sentencing departures in child sex offense cases? Through the PROTECT Act and its Feeney Amendment which we railed against plenty back in 2003. (Official title: the ‘‘Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003’’ or ‘‘PROTECT Act’’.)

Congress snuck it in as part of the Amber Alert package and everyone was afraid to vote against the Amber Alert bill. One who pushed really hard for it: Joe Biden, because it also contained his revised "Rave Act" bill, called the "Illicit Drug Anti-Proliferation Act." (See Section 608)

Senators like Ted Kennedy and Patrick Leahy opposed the Feeney Amendment but voted for it so as not to face consequences from voting against the Amber Alert portion, and promised at the time to work to repeal it. They later introduced "The Judges Act" which would have left the increased child p*rn penalties stand but restored judicial discretion in sentencing, and of course it went nowhere. (As I always say, once you give power to the Government, it rarely gives it back.) Luckily, the Supreme Court's later decisions starting with Booker that made the guidelines discretionary nullified the Feeney Amendment portion of the bill. But, nothing has been done to eliminate the the 5 year mandatory minimum penalty.

The effect of Congress's increased penalties on sentences? The Times article on Judge Weinstein says:

According to the federal defenders' office, the average sentence was 91 months in 2007, up from 21 months a decade before.

The U.S. Sentencing Commission published this detailed history of changes to child p*rn laws and sentencing guidelines in October, 2009. (See page 38 for details on the passage of the 5 year mandatory minimum and restrictions on departures, and pages 44-49 for how the Sentencing Commission increased the guidelines as directed to by Congress.)

Congress is still busy passing new offenses related to child p*rn. In 2009, it created a new crime of production of a morphed image of a minor with intent to distribute or distribution of a morphed image. See, 18 U.S.C. § 2252A(a)(7) which has a statutory maximum of 15 years. (A morphed image means "an adapted or modified depiction of an identifiable minor.”) Simple possession of a morphed image(as opposed to possession with intent to distribute the image or production of the image) is not a federal crime ... yet.

Full post as published by TalkLeft on May 22, 2010 (boomark / email).