Friday, May 20, 2011

Good and Mad Reading for the Weekend

Judge Weinstein is a one-man Supreme Court docket waiting to happen.

You'll remember Judge Jack Weinstein, of the Southern District of New York, for taking a stand against child porn mandatory minimums in the Poluizzi case and for his 125-page opinion explaining his sentencing decisions in a crack case from Bedford-Stuyvesant. So far, he's the only person who's been the subject of our Good and Mad Reading for the Weekend twice. This makes #3.

This one is another child porn case, and it has a whopper of a 349-page opinion (401 pages, if you include the appendices). In it, Judge Weinstein refuses to follow the five-year mandatory minimum for distribution of child pornography, finding that the sentence is cruel and unusual (and unconstitutional) as applied to the young, immature, and troubled defendant.

The case is United States v. C.R., and it involves a defendant (now age 21) who began looking at child porn at age 15 and  committed his current offense of child porn "distribution" at 19.  The "distribution" wasn't actually C.R. sending or selling the porn images to someone else.  The "distribution" happened when, uninvited, an undercover FBI agent downloaded child porn images from C.R.'s computer using a peer-to-peer file-sharing program.  That "distribution" carries a mandatory 5-year prison sentence without parole.

Judge Weinstein found the sentence to be cruel and unusual, as it applied to C.R.'s case.  He gave C.R. 30 months instead.  The analysis of the cruel and unusual punishment issue begins on page 323.  The judge's decision that the 5-year mandatory minimum was unconstitutional depended largely on the fact that C.R. was a juvenile during most of the time he was viewing child pornography, had a troubled childhood in a home where sex and pornography were prevalent, and "played an exceedingly limited role in the overall child pornography market," p. 325.

As usual, Judge Weinstein raises excellent questions about the value of a mandatory minimum for the defendant ("Young C.R. is far from perfect -- a characteristic shared with many. But this is not a reason for destroying him in prison," p. 7), the victim ("Whether a sentence of many years imprisonment for passive viewers will improve the victim's life is dubious," p. 15), and public safety ("A persistent concern is that observing child pornography might lead viewers to themselves sexually abuse children in the future. Reliable empirical evidence on this issue is lacking," p. 60).

Judge Weinstein brings his decision home in a way that many parents of teenage boys should appreciate:
Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons. A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age. p. 329
One of the problems in sentencing reform is that people don't believe unjust sentences can happen to them.  Their kid would never do such a thing.  Or it's okay, as long as it's someone else's kid.

But what if it were your own?

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