April 11, 2009

Pensacola Man Receives Substantial Below the Guidelines Sentence in Federal District Court for Possession of Child Pornography

A Pensacola Criminal Defense Attorney walked out of the Federal District Courtroom in Pensacola on Good Friday relieved, joyful for his client and with a sense that a reasonable, federal sentence had been imposed in his client's case by a judge that meted out appropriate punishment but also took into consideration the nature and circumstances of the offense and the personal characteristics of the defendant in a merciful fashion.

My client, Mark, (not his real name) was sent an email with a link to 23 different websites that advertised young love, teen material, etc. He clicked on the link and subsequently made the poor choice to subscribe to several different websites which contained "soft core" child pornography or erotica in the winter of '06 (these sites did not involve sexual interaction with adults); one of sites, the most sexually graphic of the sites that did involve children interacting with adults, was being monitored by the Immigration and Custom's Enforcement Division. One of the sites involved "hard core" child pornography, the others softer types of porn, however much of which was still illegal. Mark did not download the hard core child porn images but had subscribed to the site. A year passed before the Agents executed a search warrant on Mark's apartment.

When Mark came to see me he was scared and very angry with himself for having looked at the these materials. We immediately scheduled him to be evaluated by an expert in sexual offenses, he then took a polygraph to show he had never had any involvement with children, the answers to the questions posed to Mark showed he showed no deception and had never had any inappropriate contact with a child. We then got him into long term therapy with Brett Turner, Psy.Ed., who is an expert in treatment of sexual offenders in Pensacola. More than a year passed before Mark was arrested and charged with one count of possession of child pornography in violation of 18 U.S.C. 2252. The sentencing guideline applicable to this statute is USSG 2G2.2. The government alleged to have found in excess of 600 illegal images stored on his computer. This increased his guidelines sentence five offense levels.

Child Pornography Guidelines are not Facially Valid

The child pornography guidelines over the last ten years have become drastically more severe due to Congress amending the guidelines by attaching guideline amendments to more popular bills which easily passed; however, the end result regarding USSG 2G2.2, the child pornography guidelines, is that they were significantly enhanced without any empirical basis or study by the U.S.Sentencing Commission which is how guidelines are supposed to be amended. Generally, guidelines in the federal system are amended by the US Sentencing Commission after they have studied the appropriateness of an enhancement or an adjustment to a guideline after extensive investigations of what types of sentences are being imposed or how federal district court judges nationwide are resolving these cases.
The end result is supposed to be uniformity in sentencing. Unfortunately what has happened in the last ten years is the guideline has been amended by certain congressman responding to right wing constituents as well as the Justice Department's own request they be enhanced. (See Troy Stanebow's article: Deconstructing the Myth of the Child Support Guidelines). Sentences imposed in 2009 for identical conduct committed in 2003 will result in a sentence four times greater than in that which would have been imposed in 2003 without any rational reason for the enhancement other than politics.

In our case, we filed a 38 page sentencing memorandum asking the judge to depart from the advisory guideline range of 78 to 97 months imprisonment. In 2005 the U.S. Supreme Court, In U.S. v. Booker, made the federal sentencing guidelines merely advisory but something that the Courts must consider when imposing sentence. My client had little or no criminal history, had been in therapy for more than a year, had been evaluated by a forensic psychologist which resulted in his opinion the client imposed almost no risk of recidivism. (No one, you or me, has no risk of offending, we all do). He subjected himself to a lie detector test that supported the fact he had never had any inappropriate contact with children, directly or indirectly over the internet.

sky%20freedom.jpgThe district court judge, instead of imposing the advisory guideline range of six and one-half to eight years in federal prison, granted a "variance" downward and imposed a sentence of one year and one day in custody. The significance of the extra day means that he will receive 54 days gain time that an inmate would not receive if they only receive one year. His custodial sentence will be followed by one year of home confinement and ten years of supervised release (a type of intense probation). He will also be a sexual offender the rest of his life. However, such a sentence for a man who has already completed sexual offender counseling, and who has been found to be of absolutely no risk to the community, gives him not only the ability to see a blue sky at the end of his tunnel, but the opportunity to become a very productive member of our community again.

None of us support child pornography. There is absolutely no redeeming value in such material, quite to the contrary. It can and does cause serious harm, sometimes irreparable, harm to children. One thing that made my client in this case extremely atypical is that Mark recognized and acknowledged this on his own without the idea being suggested by his attorney or his therapist. He had exceptional insight that his own behavior, joining the web sties, created a market for these materials to be produced. (However, the "market theory" of purchasing/viewing child pornography has been criticized by some district courts in light of how the government uses child pornography to bait suspects, thereby using the same material that supposedly created the market and violated the privacy rights of the children involved).

The judge cited the following grounds for his variance (downward departure) which resulted in a sentence 86% below the advisory guideline:
1. he immediately subjected himself to a forensic psychological evaluation
2. he immediately subjected himself to a polygraph examination done by a highly qualified polygraph examiner (polygraphs are admissible in sentencing in federal court).
3. he is in the lowest group for reoffending
4. he has genuine, significant remorse
5. objective testing showed he is not a pedophile and that he is at low risk of recidivism
6. he was only involved in the downloading of child porn from web sites for a brief period of time
7. he came from an extremely disadvantaged background yet put, with his own financial earning, put himself through professional school and earned a doctorate degree
8. he was diagnosed as having severe depression, extreme anxiety, and obsessive compulsive disorder that contributed to his collecting the child porn (his primary collection was adult pornography). His viewing porn was an aversion to overall psychological state which included very low levels of self esteem and obsessive compulsive disorder.
9. The Court acknowledged the weaknesses of the sentencing guidelines in light of how they have been amended.
10. The defendant has been shown great stability in employment for the last ten years with the same employer (which is a sign of no psychosis, which is an indicator of someone's high likelihood of recidivism)

From what I have been told, this was the first time the Judge in this case has given a variance or downward departure in a child pornography case. My client was extremely atypical as compared to most offenders. However, what is somewhat surprising is that most offenders are male, in the mid 40s or older, have little or no criminal history and many have good jobs. The internet has created a minefield of materials that if viewed from the safety of your own home can result in people spending lifetimes in prison.

For Mark, he will never offend again. He is using this experience to better his life and embrace his personality characteristics that for so long have hampered his ability to socially interact and enjoy his life; he is slowly "inching" towards better self-esteem. This case is a good example of someone, not uncharacteristically, who achieves a certain status or career in life, (he had a doctorate degree) yet still hold themselves in very low regard. Material things, objective objects, degrees, cars, houses, beautiful wives, are no substitute for having healthy self esteem. I think Mark has a good chance as many people do of benefiting from this experience and improving his life, although he will have to suffer consequences for his criminal behavior. Another thing that made Mark unusual is he accepted the fact that he should be punished for what he did, something we don't see often with people charged with criminal charges. It helps us trial lawyers a great deal when a client is honest with us; I never had a doubt about Mark's honesty. In his case, honesty and acceptance bayed well for him.

See Pensacola Criminal Defense Attorney Jim Jenkins Website for any further information about these types of sexual crimes or others. It was a very good "Good Friday" for Mark. It was also a good "Good Friday" for me and my staff who were all in Court, even on Good Friday, a typical day off, in support of Mark.

February 7, 2009

Committing a Life Felony without Leaving Home

The internet has improved our lives in many ways. We can now chat with people all over the world, have information at our fingertips better than any encyclopedia sold in days gone by could provide, arrange travel ourselves, etc. – overall it can make managing our lives much more convenient. However, in the criminal sphere, is it is now possible for someone to commit a crime without leaving their home that could result in their spending the rest of their life in prison.

working%20man%20for%20blog.jpgIn federal courts in Florida and around the country, people, predominantly men, are being convicted of possession and distribution of child pornography resulting in extremely lengthy federal prison sentences. On the average, sentences imposed upon most of these offenders, who have little or no criminal histories whatsoever, are eight years or more. These offenders have not produced images or films, taken pictures of children themselves nor have they had any contact with child. In fact, according to forensic psychological studies, most offenders being prosecuted are not pedophiles. Most have little or no criminal history. Many offenders are men browsing pornographic web sites and downloading images of adults and underage, predominantly female, images. Some are snared by federal undercover investigations that subpoena records from credit card service provides such as Paypal to obtain lists of customers who subscribe to a particular website. Many of these illicit websites are located overseas. Others, who tend to more likely to be pedophile offenders according to the experts, are found in chat rooms having sexual explicit conversations or exchanging sexually explicit materials with individuals who they to believe underage but are actually undercover agents posing as such.

The federal child pornography guidelines have increased in their severity four fold in the last decade. The exact same offense conduct that in 2003 carried a 27 to 33 month sentence of imprisonment now carries a 78 to 97 month jail sentence. Although the guidelines are now only advisory after the U. S. Supreme Court’s Booker decision in 2005, most federal courts sentence within those guidelines unless they are presented with extraordinary factors and/or the nature and circumstances of the crime are unusual enough that the offense conduct does not warrant a “guideline sentence.” Because of the odorous nature of child porn, judges, like people, are repulsed by the offense itself making persuasive arguments for downward departures or variances from the guidelines difficult to obtain. A recent study conducted by the United States Sentencing Commission has however found that downward variances in child pornography cases are being imposed in 39% of the cases because even the courts are recognizing these guidelines are too severe. This doesn’t mean the offender is getting probation or merely supervised release - far from it. This only means the offender is receiving a sentence of imprisonment somewhat less than what the advisory guidelines calls for.

Also, the offender convicted of possession of child porn will not go to a federal “camp” but will go to at least a low security federal prison. He will also carry with him the stigma of being a person who committed a crime against a child to prison with him; people who enter the prison system fabricate a crime they committed so other inmates will be less likely to know why they are doing time to avoid retribution from other inmates. Also, the offender, when he is released from prison, will not only be on supervised release for what may be the rest of his life, but will also be classified a sex offender under the Adam Walsh Act and have serious restrictions placed on where he can live, who he can associate with and what jobs he can hold.

Peer to peer networking causes people to sometimes “unknowingly” distribute illegal images previously downloaded from the file sharing network. I worked on cases where people snared in child porn stings where they have set their computers to downloaded images on a peer to peer network system, like Kazaa or Limewire, while they are sleeping not knowing exactly what materials are being downloaded. What can happen is that they unknowingly download movies that include children. Once the movie is downloaded it is not erased from the hard drive of a computer by merely deleting it. It is there until the deleted material is overwritten by other material, which may never occur. Law enforcement can obtain IP addresses of customers of these sites and determine what materials have been downloaded and list such downloading in an affidavit for a search warrant as probable cause to search the person’s home and seize his computer and any other materials related to the alleged offense. An excellent resource for practitioners who become involved in internet pornography cases is Strategies for Defending Internet Pornography Cases

The child pornography federal sentencing guidelines are under attack by some district courts and other entities because legislation was “snuck in” that increased their severity without any empirical basis making an adjustment upward necessary. Generally, federal sentencing guidelines are formulated by the US Sentencing Commission based upon years of study and experience dealing with certain offenses. The amendments requiring four-fold increases to child porn guidelines did not receive this scrutiny because the amendments to the guidelines were attached to other legislation by a freshmen congressman at the recommendation by Justice Department officials. See Troy Stanebow Article "Deconstructing the Myth of the Child Pornography Guidelines"

Child pornography is a serious matter and efforts should be made to eliminate it entirely. However, guidelines that require, in many instances, sentences of 10+ years for someone who possessed materials, who has no likelihood of recidivism, who is a productive citizen, who has no criminal history and who will be strictly monitored the rest of his life is not reasonable in every case. Of course, albeit some congressman may believe this as well, it would be politically disadvantageous for him or her to suggest a more reasonable sentencing structure now that the guidelines have already been enhanced resulting in these draconian sentences.