You Be the Judge

Every once in awhile here at the blog, we like to post stories and ask our readers to be the judge.

This time around, it's the case of Todd Broxmeyer, sentenced to the statutory maximum of 30 years for attempted production of child pornography and possession of child pornography, described in this piece in the New York Law Journal.  Here's the government's version of his offense:

Prosecutors accused Broxmeyer of enticing girls he coached [on a field hockey team] into sexual situations by praising their appearances, sending them photos of his erect penis, and requesting that they send him sexual images of themselves. Police say he also challenged girls to get their friends to send him naked photos of themselves.

He then escalated his behavior by trying to make physical advances on the girls. Authorities said he ultimately had sex with "several" of the teens.

The production of pornography charge concerned sexually explicit photos Broxmeyer coaxed a 17-year-old identified as K.T. to take of herself and the possession charge concerned several images of teen girls, including those of K.T. and another 17-year-old girl he coached.

(Note:  In New York, the age of sexual consent is 17.)  

Broxmeyer faced a 15-year mandatory minimum that, once the U.S. Sentencing Guidelines enhancements were added in, increased to a life sentence.  (Read FAMM's factsheet to learn more about child pornography sentencing.)  Broxmeyer ultimately got "only" 30 years because that is the statutory maximum for the crimes.

Chief Judge Dennis Jacobs dissented from the appellate court's decision to uphold the 30-year sentence Broxmeyer received (the judge found the 15-year minimum "more than sufficient" for the crime). Chief Judge Jacobs' dissenting opinion is a good summary of many of the problems with the current guidelines for child pornography offenses. He had numerous reasons for disagreeing with both the 30-year maximum sentence and the life sentence under the guidelines, but here's the gist of it:

[A] Guidelines calculation that so far exceeds the statutory maximum should give pause. In this instance, many of the enhancements reflect no incremental evil beyond the base offense itself. And the base offense itself is the eliciting of (in the majority’s words) a “suggestive, but not sexually explicit” self-photograph from a girl who was of the age of consent in New York--surely the least of the evils that Congress could have contemplated when it drafted the statute. ...

[A] sentencing court is not limited to the conduct giving rise to the offense of conviction. Nor is an appellate court so limited; ... My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be upheld as reasonable, a court should not lose sight of the offense of conviction. I respectfully argue that the majority has done just that. In the fact section of the majority opinion, the offenses of conviction are embedded in graphic accounts (twice as long) of misconduct that (however egregious) forms no basis for either of the convictions for which Broxmeyer was sentenced. The fact segment of the majority opinion is largely preoccupied with an act underlying both [i] a federal Mann Act conviction (18 U.S.C. § 2423(a)) that was reversed, and [ii] a state prosecution for which Broxmeyer was convicted and is imprisoned. Much of the rest is a catalog account of sexual activities with other high school girls for which Broxmeyer could not be charged in federal court. And it is not at all clear how much of this long fact recitation is premised on findings that were actually made by the district court. Moreover, the majority’s analysis does not rely on any of that misconduct; mainly, it primes and incites the reader, who might otherwise focus on the offense of conviction, and the fact that it amounts to a single act of attempted sexting. When the majority opinion does get to the offense of conviction (attempted production), it is enlarged to include additional, subsequent conduct. True, Broxmeyer continued to importune K.T. to sext him nude pictures of herself, and did so with more success. But if that were the offense, Broxmeyer would have been charged with production itself, not the attempt. The prosecution chose not to do so, for its own (presumably sufficient) reasons.

My conclusion is that it is error to impose a 30-year sentence for an offense that amounts to attempted sexting.

Chief Judge Jacobs says it best in this slice of his opinion:

... something needs to be re-thought when in a case like this, the Guidelines calculation yields a life sentence. That is the sentence imposed on Jeffrey Dahmer, who killed people, and ate them.

Mr. Broxmeyer's conduct surely is not savory or desirable, but Chief Judge Jacobs also surely makes a good point.  Is it possible that, in our zeal to protect our kids (even our 17 year-old ones who can legally consent), we have perhaps gone too far?

You be the judge.  Leave a comment and tell us what you think.