Judge Jack Weinstein was in the news again yesterday for his stance against child porn mandatory minimums, this time in the case of Peter Polizzi.
The Polizzi case has a long history and involves receipt of child pornography, a federal crime that carries a five-year mandatory minimum prison sentence (with no parole). Like all mandatory minimums, it's a one-size-fits-all punishment -- it doesn't matter if the person is a first-time offender, has a history of being sexually abused as a child, or has never sexually abused a child himself. Peter Polizzi, 57, fit all three of those criteria, and Judge Weinstein found him so compelling that he fought long and hard -- through an appeal and a resentencing -- to avoid giving him a mandatory minimum.
The New York Times chronicles here Judge Weinstein's herculean efforts to get around the mandatory minimum sentence:
During his trial, in 2007, Mr. Polizzi used an insanity defense, saying he had been repeatedly raped as a child and had collected the pornographic pictures not for sexual gratification, but in hopes of finding evidence of his own abuse — claims the prosecution dismissed as implausible. When the first of the images were shown in court, Mr. Polizzi collapsed and was taken to a hospital.
He was eventually convicted of all 12 counts of receiving child pornography and 11 counts of possession.
Then, in a departure from custom, Judge Weinstein asked the jurors if knowing about the mandatory five-year sentence would have changed their views. Some said yes. The judge sentenced Mr. Polizzi to a year in prison for the possession count, then ordered a new trial on the other charges. The Court of Appeals later reversed that order.You can read FAMM's "friend of the court" brief we submitted on the Polizzi appeal here.
This week, Judge Weinstein reluctantly gave Polizzi the mandatory minimum sentence of five years in prison:
Last year, in an interview with The New York Times, Judge Weinstein said he believed that mandatory sentences were misapplied to people who viewed child pornography, as opposed to those who produced the images.
“We’re destroying lives unnecessarily,” he said then. “At the most, they should be receiving treatment and supervision.”
In 2007, a jury found Mr. Polizzi guilty of receiving and possessing child pornography. Under federal sentencing guidelines, he was eligible for a term of 11 to 14 years in prison. That is what the government requested [this] Thursday.
But the judge responded: “I find it grossly excessive. Therefore, a guideline sentence is not imposed.”
Instead, Judge Weinstein ordered that Mr. Polizzi serve the mandatory minimum of five years.
He also gave Mr. Polizzi eight weeks before beginning the sentence. Federal prosecutors had asked that Mr. Polizzi be taken into custody immediately, saying he was guilty of a crime of violence.
Again, the judge disagreed.
“Calling it a crime of violence for this purpose seems to me a strange treatment of language,” Judge Weinstein said, adding that he would not require the defendant to start serving his sentence right away. “It does seem to me to be a form of cruel and unusual punishment and punitive in nature.”For the record, Judge Weinstein isn't the only federal judge who thinks child pornography sentences are too long. In a 2010 survey of federal judges by the U.S. Sentencing Commission, 70% of judges agreed that child porn receipt sentences are too harsh (both under the sentencing guidelines and under mandatory minimum laws).
Sure, receiving and viewing child pornography is a serious social problem and an absolutely unsavory crime, but should it be punished with a mandatory minimum? Everyone deserves to be sentenced as an individual. Every case is unique. And as Peter Polizzi shows, no child porn case is simple.
We applaud Judge Weinstein for fighting for fair and individualized sentences even for unpopular offenders.