Court Describes Federal Sentencing Disparities as “A Picture of Injustice” Robert Paisola Reports

In 1984 the United States Congress enacted the Sentencing Reform Act (“SRA”), and as part of the Act, Congress created the United States Sentencing Commission (“Commission”) to “establish sentencing policies and practices for the Federal criminal justice system.” 1/ The Commission was charged with the responsibility of creating U.S. Sentencing Guidelines (“Guidelines”) that would assist Federal judges in the sentencing process to fulfill Congress’ five purposes for imposing criminal sentences. 2/

Title 18, United States Code, Section 3553(a)(2) lists the five congressionally-mandated purposes for sentencing:

•To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
•To afford adequate deterrence to criminal conduct;
•To protect the public from further crimes of the defendant; and
•To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
While the Guidelines and the § 3553(a) factors were intended to eliminate the gross disparities in federal sentencing practices before the SRA, they have failed miserably in many significant respects, particularly in child pornography cases. Since the enactment of the SRA, Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. 3/ The following is a list of many of the laws enacted by Congress over the last three decades regarding child pornography-related offenses:

•Protection of Children Against Exploitation Act of 1978;
•Child Protection Act of 1984;
•Child Sexual Abuse and Pornography Act of 1986;
•Child Abuse Victims’ Rights Act of 1986;
•Child Protection Restoration and Penalties Enhancement Act of 1990;
•Sex Crimes Against Children Prevention Act of 1995;
•Protection of Children from Sexual Predators Act of 1998;
•Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
•PROTECT Our Children Act of 2008;
•Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
•Keep the Internet Devoid of Sexual Predators Act of 2008; and
•Effective Child Pornography Prosecution Act of 2008.

This endless stream of legislation has contributed to an increasing, and more open, judicial chaos in the specific area of child pornography sentencing. This chaos was highlighted in the case of Jeremy Goldberg who pled guilty in March 2006 in the United States District Court for the Northern District of Illinois to a single count of possession of child pornography. U.S. District Court Judge Joan B. Gottschal sentenced Goldberg to one day in prison, credit for time served, and ten years of supervised release. 4/ The Government appealed the sentence as unreasonably lenient, and in June 2007 the Seventh Circuit Court of Appeals agreed, remanding Goldberg’s case back to Judge Gottschal for resentencing. 5/ On remand, Judge Gottschal sentenced Goldberg to 48 months of imprisonment, recommended that he be placed in a Sex Offender Treatment Program operated by the Federal Bureau of Prisons, and imposed ten years of post-release supervision. 6/

But Judge Gottschal did not shy away from the Seventh Circuit’s remand order. She pointed out in her sentencing memorandum on remand that she had explained the original sentence as best she could, and added that a fair reading of her explanation was not “consistent with the Seventh Circuit’s assessment of it.” She noted that the appeals court not only quarreled with the way she had justified Goldberg’s original sentence but quarreled with the sentence itself. 7/ The judge cited the following portion of the Seventh Circuit’s ruling to support her position:

“A prison sentence of one day for a crime that Congress and the American public consider grave, in circumstances that enhance the gravity (we refer to the character of some of the images), committed by a convicted drug offender does not give due weight to the ‘nature and circumstances of the offense,’ ‘promote respect for the law,’ or ‘provide just punishment for the offense.’ It does not ‘afford adequate deterrence to criminal conduct.’ And it creates an unwarranted sentence disparity, since similarly situated defendants are punished with substantial prison sentences.” 8/

Perhaps it was the Seventh Circuit’s reference to “sentence disparity” that prompted Judge Gottschal to call out the appeals court. Over an 18-month period Jeremy Goldberg downloaded from the Internet hundreds of images of children—some as young as 2 or 3—engaged in sex acts with adults. He offered these images to other subscribers of a web site in an effort to procure similar images from these subscribers. And he would masturbate while viewing the child pornography. 9/ Judge Gottschal in some detail examined sentences imposes in what she called “comparable cases in its sister courts.” 10/ As noted by Judge Cottschal, the following cases illustrate the disparity in the way similar child pornography cases are charged and sentence:

•Kirkham v. United States, 2008 U.S. Dist. LEXIS 31046 (D. Utah 2008): child pornography case involving 5,129 images given a 120-month sentence where Guidelines recommended sentence range of 135-168 months.
•United States v. Sudyka, 2008 U.S. Dist. LEXIS 42569 (D. Neb. 2008): child pornography case involving 3000 images given a 24-month sentence where Guidelines recommended sentence range of 63-78 months.
•United States v. Baird, 2008 U.S. Dist. LEXIS 2338 (D. Neb. 2008): child pornography case involving 800 images given a 24-month sentence where Guidelines recommended sentence range of 46-57 months.
•United States v. McElheney, 524 F.Supp.2d 983 (E.D.Tenn. 2007): child pornography case involving 200 images given 135-month sentence where Guidelines recommended sentence range of 135-168 months.
•United States v. Thomas, 2008 U.S. Dist. LEXIS 15937 (N.D. Ill. 2008): child pornography case involving 200 images given 84-month sentence where Guidelines recommended sentence range of 168-210 months.
Judge Gottschall then pointed to the sentence disparities found among the federal circuits:

•United States v. Perez, 484 F.3d 735 (5th Cir. 2007): sentence of 57-months upheld in child pornography case involving thousands of images stored on 4000 compact discs.
•United States v. Kirchhof, 505 F.3d 409 (6th Cir. 2007): sentence of 180 months upheld in child pornography case involving 992 images where Guidelines recommended sentence range of 210-262 months.
•United States v. Grinbergs, 470 F.3d 758 (8th Cir. 2006): sentence of 12 months and a day reversed in child pornography case involving 348 images where Guidelines recommended sentence range of 46-47 months.
•United States v. Kerr, 472 F.3d 517 (8th Cir. 2006): sentence of 151 months upheld in child pornography case involving 45-50 images (some sadomasochistic).
•United States v. Meiners, 485 F.3d 1211 (9th Cir. 2007): sentence of 180 months (statutory mandatory minimum) upheld in child pornography case involving 10,000-12,000 images (some sadomasochistic).
•United States v. McBride, 511 F.3d 1293 (11th Cir. 2007): sentence of 84 months upheld in child pornography case involving 981 images where Guidelines recommended sentence range of 151-188 months.
Judge Gottschal did not stop with the sentencing disparities found in other federal circuits in child pornography cases. She pointed to blatant disparities in such cases found in the Seventh Circuit itself:

•United States v. Lowe, 516 F.3d 580 (7th Cir. 2008): sentence of 144 months upheld in child pornography case involving 6500 images.
•United States v. Shrake, 515 F.3d 743 (7th Cir. 2008): sentence of 330 months in child pornography case involving 600 images where Guidelines recommended a sentence range of 292-365 months.
•United States v. Baker, 445 F.3d 987 (7th Cir. 2006): sentence of 87 months upheld in child pornography case involving 300 images where Guidelines recommended sentence range of 108-135 months.
•United States v. Barevich, 445 F.3d 956 (7th Cir. 2006): sentence of 76 months upheld in child pornography case involving 8178 images where Guidelines recommended sentence range of 87 to 108 months.
•United States v. Wachowiak, 496 F.3d 744 (7th Cir. 2007): sentence of 70 months upheld in child pornography case involving more than 600 images (some sadomasochistic) where Guidelines recommended sentence range of 121-151 months.
These cases reflect there is no real rhyme or reason to the actual sentences imposed in child pornography cases or in the Guidelines that govern such sentences. This point was made clear by Judge Kathleen M. O’Malley in the case of Evan M. Stern who pled guilty to possession of child pornography in the United States District Court for the Northern District of Ohio. The Guidelines recommended a sentence range of 46 to 57 months. Judge O’Malley, who rarely ever deviates from the recommended Guidelines sentence range and who has a history of imposing harsh sentences in child pornography cases, imposed a sentence of 12 months and 1 day of incarceration on Stern. 11/ Citing the Jeremy Goldberg decision, Judge O’Malley made these observations about sentencing disparity in child pornography cases:

“This Court has carefully considered an extremely wide variety of opinions from across the country as well as the National Guidelines Statistics … The Court is deeply troubled by its findings: ‘anyone seriously concerned about federal sentencing disparities [must begin by] taking a very close look at federal child porn cases.’ Professor Douglas A. Berman, Is there an Ivy-Leaguer Exception to Federal Child Porn Charges? (October 22, 2008) … Based on the Court’s review of the case law, it is clear that ‘one would be hard pressed to find a consistent set of principles to explain exactly why some federal porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.’ Id. This Court is ‘struck by the inconsistency in the way apparently similar cases are charged and sentenced.’

“In short, the national sentencing landscape presents a picture of injustice. In the absence of coherent and defensible Guidelines, district courts are left without a meaningful baseline from which they can apply sentencing principles. The resulting vacuum has created a sentencing procedure that sometimes can appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individual situation. Individual criminal sentences are not the proper forum for an expansive dialogue about the principles of criminal justice. Such conversation, though vital, should not take place here—lives are altered each and every time a district court issues a sentence: this is not a theoretical exercise. Yet, this Court is mindful of the appropriate scope of its authority—it must take the law as it finds it.” 12/

Congress has created the law the way Judge O’Malley finds it—a “picture of injustice.” While we agree with Judge Gottschal that “no two cases are identical and reported cases may not describe all [the] salient facts,” the cases cited by Judge Gottschal and those which influenced Judge O’Malley’s “picture of injustice” conclusion clearly demonstrate there are serious problems in the federal sentencing process, especially in child pornography cases. It is fundamentally unjust to punish criminal defendants differently for committing essentially the same offense. Unexplainable and significant sentencing disparities are repugnant to our notions of justice.

We strongly suggest that Congress quit pandering to the “law and order” agenda and enact legislation that will bring about a more uniform federal sentence process which was in the original intent of the SRA.

SOURCES:

1/ “The History of Child Pornography Guidelines,” The United States Sentencing Commission, (October 2009). Full report at: http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf
2/ Id., at p. 1
3/ Id.
4/ United States v. Goldberg, 2008 U.S. Dist. LEXIS 35723 (N.D. Ill. April 30, 2008)
5/ United States v. Goldberg, 491 F.3d 668 (7th Cir. 2007)
6/ United States v. Goldberg, supra, Lexis at 1
7/ Id., Lexis at 2
8/ United States v. Goldberg, supra, 491 F.3d at 671-72
9/ Id., at 670
10/ United States v. Goldberg, supra, Lexis at 5
11/ United States v. Stern, 590 F.Supp.2d 940 (N.D. Ohio 2008)
12/ Id., 590 F.Supp. at 961

Internet child pornography consumers aren’t always pedophiles

The proliferation of Internet pornography has been a boon to both the novice and most seasoned consumers of erotica. Every taste and proclivity — from the most pedestrian soft core porn interest to the most twisted (e.g. sadistic or degrading) and illegal (e.g. child pornography) interests — can be indulged in the privacy of one’s own home, often at no cost. The more problematic the interest, the more likely it will engage penal sanctions, and the more important it will be for lawyers to understand what the behavior is all about.

Internet pornography consumers are as heterogeneous a group as there is, and include, among others (of a non-exhaustive list): the repressed, the shy, the fearful, the insatiable, the compulsive and addictive, the impulsive, the inadequate, fetishists, masochists, deviants (a social and moral term) and paraphiliacs (a medical and diagnostic term) and oh yes, the “normals.” Major mental disorders like bipolar disorder (i.e. mania) are occasionally implicated.

Contrary to views held by some, including law enforcement, lawyers and perhaps even judges, not all consumers of child pornography are pedophiles. There are many reasons why an accused may have accessed or be in possession of child pornography obtained through the Internet. Prevention of victimization and denunciation of the behavior are clearly forefront issues, no matter what motivations underlie the behavior, but it is always important for the justice system to know who it is dealing with and to not mis characterize the offender and the offense.

In dealing with issues and behaviours that have psychological or emotional underpinnings, there is no substitute for a detailed forensic psychiatric (medicolegal) assessment. These frequently multidisciplinary evaluations consider not just the problem behaviour, but the whole person in the context of his life history. In the case of accused caught possessing or disseminating Internet child pornography, a detailed evaluation of this kind is critically important in defining the motivation for the behaviour and assessing and managing future risk.

From defence counsel’s perspective, understanding what motivated her client to participate in the activity is critical. If there are mental health considerations or psychological issues that have played a role in the behavior, then bringing that out in a detailed and well-reasoned report can and should influence a more therapeutic and risk- management oriented sentence. Of equal importance, it would be more challenging for the court to meet the aims of justice — ensuring punishment, protecting the public, rehabilitating the offender and preventing recidivism — without an assessment of this kind. Treating these offenders as a homogeneous group — which they are not — could also lead to a one-size-fits-all approach. A failure to discriminate between offender and offence variables that allow for tailor-made sentences is generally anathema to those interests and values the justice system works hard to uphold.

There are subclasses of Internet child pornography consumers, including those who pursue this type of imagery and stimuli deliberately and exclusively, those who stumble across it and who, apart from its erotic content, were further titillated by the forbidden and illegal nature of the material. There are individuals with polymorphous sexual interests for whom novelty and variety is at least, if not more important, than any one particular type of material.

This latter group, as well as those who exhibit addictive and compulsive cybersex propensities (Internet use addiction is a contentious diagnostic area), may become gripped by their need or addiction and obsession to a degree that impacts or dampens their judgment in discriminating from one (acceptable) source to another (unacceptable) source.

While there are limitations in an expert’s ability to definitively diagnose or rule out pedophilia (an erotic preference for pre-pubescent children — a key diagnostic consideration for Internet child pornography users) — an in-depth evaluation is the best means for getting at the truth of the offender’s sexual interests and makeup, or any other psychological motivating factor. The assessment subsumes a detailed psychiatric and sexological evaluation, phallometric testing (a physiological measure of sexual arousal), access to collateral information (individuals who have known the accused and potentially interacted sexually with him), as well as laboratory investigations and, often, psychological testing (including use of risk assessment tools).

Experienced forensic psychiatrists generally approach cases featuring this behaviour with a high index of suspicion (i.e. a questioning and even cynical approach — an occupational hazard) about the nature and purpose of the behavior and the diagnostic realm to which it belongs. Pedophilia is invariably hypothesized, but is only tenable if the individual has a fairly entrenched and predominant interest in prepubescent children that has manifested in (masturbatory) fantasy, urges and behaviour and he has acted on these urges, is distressed by them or has experienced interpersonal difficulty as a result.

There may be subgroups of pedophiles out there who have lived exclusively in fantasy and have the wherewithal, self-control and enough of a repertoire of acceptable sexual interests and behavior to have successfully avoided acting out (some have just avoided getting caught). In the (false, as it turns out) security of their home, computer access created the first instance in which a miscalculation (possibly brought about by the bounty of forbidden and erotically stimulating material) caused them to fly headfirst into the radar.

Again, distinguishing the pedophile from an accused who viewed and downloaded Internet child pornography because, among so many things (on his computer), it met his needs for novelty and diversity is a different diagnostic matter, has different implications for society’s risk and well being and, arguably, is an entirely different situation for the justice system.

It would be very important for the assessor to consider, apart from all of the information noted above, the manner in which the accused went about accessing the child pornography (did he pay for it, join chat lines, take steps to access or meet children), the exclusivity or degree of representation of child pornography in his collection of erotic or pornographic material and the degree to which any interest in children, deduced from the materials seized or websites visited, reflects previously enacted subtle or overt sexually motivated behaviors toward children.

The lawyer and expert should communicate prior to the assessment so that the lawyer can be informed and, in turn, inform the client of what to expect, allay concerns, review confidentiality and duty to warn considerations and stress the importance of honest disclosure (and the pitfalls of a lack thereof). Ongoing communication is ideal. The lawyer will want to know where the assessment is headed and the implications of either a potentially positive or negative assessment on legal strategies.

Individuals convicted of crimes falling under the general category of Internet child pornography will already bear the designation “sex offender.” If the truth about the offender’s sexual diagnosis (or lack of one) and motivation is not brought out, then he may further be labeled a “pedophile” — an even more noxious pejorative and socially loaded designation that could dog him for life.

Hy Bloom is a forensic psychiatrist and lawyer. He assesses individuals whose psychological and emotional state, motivation or behaviour are of relevance in a criminal, civil, professional regulatory or employment matter. He is a director of workplace.calm inc., consultants in workplace conflict and violence prevention and management. ..News Source.. by Hy Bloom