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US judges balk at rigid child porn sentences

Say guidelines often demand punishment beyond severity of crime

By Milton J. Valencia
Globe Staff / February 12, 2012
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As law enforcement officers and policy makers toughen prosecutions for the distribution and possession of child pornography, they are encountering increasing resistance from federal judges in what has become a caustic conflict over the appropriate punishment for a heinous crime.

In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines.

That figure has been steadily increasing since the Supreme Court in 2005 and 2007 affirmed that judges have the right to depart from commission recommendations.

Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography - far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal.

The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. “As far as I’m concerned, there are some problems with the guidelines,’’ she said in open court in issuing the sentence.

In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.

The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority. A public hearing is set for Feb. 15 in Washington.

Judges, including several locally, argue that changes in child pornography sentencing approved by Congress over the past decade, which add extra time for various factors such as the number of images involved, have resulted in sentences that are far too severe.

“Congress sets policy, but Congress doesn’t sentence individuals, judges do,’’ said retired US District Court Judge Nancy Gertner, who served on the bench in Boston until September 2011. “The guidelines don’t make sense, even for one who wants to be tough on pornography. The measure of the guidelines doesn’t match the culpability of the defendant.’’

Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability. But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences.

They say Congress - and society - have called for the toughened penalties for the crime.

“There’s been recognition nationwide that there’s been an epidemic,’’ said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. “There is an exploitation [of children] that goes on every time those photos are shared.’’

Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003. The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.

But within the legal community, there has since been a growing chorus of criticism from those who say the punishment is too great, even for such a universally reviled crime.

“The sentences are excessive, and the issue is one that could be modified,’’ said former US senator Arlen Specter of Pennsylvania, who has also served as a prosecutor. He co-authored a journal in a law trade magazine in October calling for sentencing reforms. “It’s important to justice. But it’s hard to do, because child pornography is so highly emotional.’’

At issue are the additional penalties that Congress approved on top of the existing, baseline sentences for the possession and distribution of child pornography. Penalties for the base level alone can range from 27 months to 51 months in prison, with Congress mandating a minimum five years in prison for anyone convicted of distributing or intending to distribute pornography.

Opponents of the guideline argue that the additional penalties - known as enhancements - are inherent factors in the crime, and unfairly increase the guidelines.

The guidelines, for instance, call for additional penalties if a computer was used in the crime, and for a further enhancement if the child depicted in the images is prepubescent or under 12 years old - factors that exist in more than 90 percent of the cases, according to Sentencing Commission data. Also, anyone using a file-sharing network could fall under the distribution category because their images are open to anyone, even if they do not purposely send them out.

With added enhancements for sadistic or violent images, and for increased penalties when more pictures are involved, a defendant could face a sentence of 20 years in prison for receiving child pornography - higher than guidelines for crimes involving use of a gun or physical violence or abuse.

Federal prosecutors defend the length of prison time, arguing that it protects the young children who are the victims in such cases.

Lang acknowledged that the sentencing enhancements should be reconfigured to reflect the way the crime is carried out. A defendant should face tougher penalties for running a chat group, rather than simply being involved in the chats, for instance. Defendants should also face tougher sentences according to the ages of the victims in the photos.

Prosecutors argue that the public, and judges, should make no distinction between those who possess pictures and those who produce them, pointing to a case out of Milford in which the discovery of child pornography images led to the prosecution of an international child porn production ring. More than 100 young children have been identified and removed from dangerous environments, according to prosecutors.

The Department of Justice has also pointed to a study at a federal prison that found that found that 85 percent of inmates convicted of child pornography possession who took part in therapy sessions later admitted to having sexual contact with children. Before they were sentenced, 74 percent of the 155 men who took part in the study indicated they had no history of contact with children.

“I’m very cautious when I hear people use the term child pornography offender with this underlying assumption that they haven’t done anything else,’’ said Michael Bourke, a psychologist who conducted the study and published its findings in 2009.

In some cases, judges have decided that lengthy sentences are appropriate.

Last summer, Saris - the same judge who went below guidelines in a case last month - sentenced an Acton man to close to 13 years in prison, followed by a lifetime of supervised release, for receipt and possession of child pornography.

The man, Brad Warner, 33, was a co-founder of HammelFit, a fitness and education program designed for children under age seven.

Gertner, who now teaches law at Harvard University, said the Sentencing Commission has long sought to strike a balance between sentences that are both tough but also appropriate.

But the involvement of policymakers inflamed by public opinion has only swayed the guidelines to the point they are out of proportion with the underlying crime, said Gertner, who has issued sentences ranging from 48 months in prison to 60 months. She also sentenced two men convicted of trafficking children to 300 months in prison.

“We’re not talking about whether they should be punished or not, we’re talking about the degree of punishment,’’ she said. “No one is saying don’t make it criminal. We’re saying reserve the worst case for the really deserving.’’

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.

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