Republican Judges Use Advisory Guidelines, Too

It's not just Democrat-appointed federal judges like Judge Jack Weinstein who have a major beef with the extremely harsh sentences for federal child pornography possession crimes. At least one Republican-appointed judge doesn't like them much, either, as this Illinois case shows:

“(The guidelines) go from a sentence of two to three years to a sentence of seven to 10 years very, very quickly,” U.S. District Judge Philip Simon said during a sentencing hearing for Hammond resident Hugh Payne, 64. “I’m very troubled by that.”

Payne pleaded guilty earlier this year to one count of possession of child pornography, and federal sentencing guidelines say that the base range of imprisonment should have been about two to three years.

However, Payne’s range was increased to six to eight years because he used a computer for the crime, the pictures included children younger than 12 years old and some children were shown being constrained. A U.S. Supreme Court ruling, often referred to as Booker, made the guidelines advisory instead of mandatory for federal judges.

Fortunately, since this case did not involve a mandatory minimum sentence, Judge Simon was able to use his discretion and give the defendant a sentence that fit him and the crime. The short article does a nice job of summarizing Judge Simon's reasoning process, showing that he was neither crazy nor irresponsible in reaching his final decision:

Payne’s attorney, Paul Stracci, argued Wednesday that all of those enhancements [using a computer, etc.] show up in the vast majority of other child pornography possession crimes and that defendants are essentially punished twice. .... 

He also argued that studies show none of those are strong factors in predicting recidivism and asked that Payne, a Vietnam War veteran who has a number of health problems, receive no imprisonment.

[Judge] Simon, who said that this is the first such case he has overseen, rejected that, saying he thought the crime was serious enough to warrant a significant jail sentence. However, he said [he] was concerned about the additions of those enhancements, noting that the computer and young children enhancements are found in more than 90 percent of the cases.

“It’s the length of imprisonment that bothers me in this case,” Simon said.

He also said that he factored in Payne’s 42 years of work history, his medical problems and the fact that he was injured while fighting in the Vietnam War before sentencing Payne to 3 1/2 years in prison, about half of what the federal guidelines called for.

Judge Simon is a former federal prosecutor and was appointed by President George W. Bush in 2003. With that background, it's hard to accuse him of being some mamsy-pamsy, bleeding-heart, soft-on-crime judge who we can't trust to keep us safe (and 3 1/2 years isn't some slap on the wrist).

So ... could it be that child pornography possession sentences -- even under the advisory guidelines -- just don't always fit the individual and the crime in question? Could it be that sometimes they are over-the-top? Could it be that they are in need of some review by the U.S. Sentencing Commission? Could it be a good thing that the guidelines are advisory and let judges look the offender in the eye, consider all the facts, and settle on a sentence that makes sense, keeps us safe, and yet doesn't over-punish?

Yes, to all of the above.