A Sentencing Opinion Invoking Lord Denning and Dostoyevsky

Senior U.S. District Court Judge John L Kane, Jr. (Colorado) issued a brave sentencing decision today in a child p!rnography case. (Opinion in USA v. Rausch, here.)

In it, Judge Kane examines the purpose of sentencing and punishment, invoking Lord Denning, Dostoyevsky and others.

The defendant was charged with possession of less than 100 child p!rn images. The Sentencing Guidelines called for a sentence of 97 to 120 months. The Government asked for 97 months. [More...]

The defendant, a pedophile with no prior record, is a former Bureau of Prisons employee, on kidney dialysis and a transplant wait list with a history of other medical ailments.

The sentence: One day with credit for time served, lifetime supervised release, registration as a sex offender and home detention until the Probation Department decides otherwise.

From the opinion:

Lord Justice Denning, the great English jurist, has called punishment “the emphatic denunciation by the community of a crime.” In his view, and I see great value in it, punishment reinforces the community’s respect for its legal and moral standards. The restraint on this principle, however, is that punishment is only justifiable when it is deserved. Rausch has admitted guilt and the proof is evident and overwhelming. Even so, the utilitarian assertion is that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order. While the practice of punishment has been extant throughout the history of human culture, so, too, has been its cautionary curtailment.


As Judge Weinstein observed in United States v. Gigante, 989 F. Supp. 436, 422 (E.D.N.Y. 1998):

[T]he principle of modifying a sentence to take account of a defendant’s frailty has strong and ancient roots. See, e.g., The Code of Maimonides, Book XIV, The Book of Judges (Abraham M. Hershman, trans., Yale Univ. Press 1949 (emphasis omitted) (“How many stripes are inflicted . . . as it is said: to be beaten . . . according to the measure of his wickedness . .. (Deut.25:2). But the number is reduced in the case of a frail man . . . .”).

And this:

Further, in Dostoyevsky’s The House of the Dead and Poor Folk, 180 Constance Garnett, trans., (Barns and Noble Classics 2004), we read: “It is useless to punish a sick man.” Id. (explaining the absurd practice of imprisoning sick men and making
them wear shackles).

Judge Kane continues:

Title 18 Section 3553(a) provides evaluative criteria to restore balance between the order of society emphasized by the retributivist approach and the utilitarian view that every human being must be treated with respect for his or her individual circumstances. The stated criteria may clash, and not all apply in each case. The criteria also point to individuated considerations : No one size fits all. The object of this balancing process is to achieve not a perfect or a mechanical sentence, but a condign one — one that is decent, appropriate and deserved under all attendant circumstances.

In stating his reasons for the one day sentence, Judge Kane includes, among others:

First, this is a grievous offense which does not merit lenient treatment, and a one-day sentence followed by life-time supervised release with a period of home confinement is the strongest penalty I can exact without putting Rausch’s life at substantial risk.

Second, Rausch’s extremely poor health and the complexity of his needs for medical care override any value that further imprisonment would have.

One other note: Judge Kane, as did a Nebraska federal judge before him, criticized the Sentencing Commission's formulation of the child p*rn guidelines:

The Government asserts that because the Sentencing Guidelines were constructed at the direction of Congress, they should receive great weight. Ordinarily this is so, but not when Congress ignores the recommendations and studies of the Sentencing Commission as it did with this crime, and thereby negates the rationale for affording such weight to them.

The Nebraska judge had opined:

[F]or policy reasons, and because statutory mandatory minima dictated many terms of the Guidelines, the Commission departed from past practices in setting offense levels for such crimes as . . . child crimes and sexual offenses. Consequently, the Guideline ranges of imprisonment for those crimes are a less reliable appraisal of a fair sentence.

In cases involving application of Guidelines that do not exemplify the Commission’s exercise of its characteristic institutional role — basing its determinations on “‘empirical data and national experience, guided by a professional staff with appropriate expertise’”— it is not an abuse of discretion for a district court to conclude when sentencing a particular defendant that application of the guideline will yield a sentence “greater than necessary” to achieve the purposes set out in Section 3553(a).

Now that the guidelines are no longer mandatory, Judge Kane was free to do what judges are supposed to do: treat each case individually and use his discretion.

No word yet on whether the Government will appeal.

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    i do love reading opinions! (5.00 / 0) (#1)
    by cpinva on Wed Aug 13, 2008 at 07:22:52 PM EST
    sometimes, as with this one, you come upon a gem; well written, cogent, and just wonderful to read. i bet this guy would be great in a law class.

    wow, a good judge (5.00 / 0) (#2)
    by DandyTIger on Wed Aug 13, 2008 at 07:23:28 PM EST
    Quick take his picture and post it on the good judges board before he's removed. Dostoyevsky would be proud.

    What does "supervised release" (none / 0) (#3)
    by gyrfalcon on Wed Aug 13, 2008 at 08:52:53 PM EST
    actually consist of in federal cases?  What's the record of the probation department in deciding when somebody gets out of home detention?  For that matter, what does "home detention" mean and how is it enforced?  Is this one of those ankle-bracelet GPS thingies?

    I'm entirely in agreement with the judge's reasoning, but we've had a series of horrible cases here in Vermont where pedophile sex offenders have been declared safe to release to the community after a couple years of treatment and have almost immediately turned around and repeated the crime, so I'm leery of decisions that rely on somebody's judgment on when a sex offender is "safe."

    I assume the feds aren't quite such easy marks as our Vermont authorities are, but how tough is that probation dept. likely to be if and when this guy regains his health?

    supervised release is the (none / 0) (#4)
    by Jeralyn on Wed Aug 13, 2008 at 10:43:28 PM EST
    equivalent of parole. The feds abolished parole for offenses after 1987 when the guidelines came in.

    Like parole, it can only be imposed after a jail term, which is why the Judge had to give him one day.

    This offender had no criminal contact with children. His offense was looking at pictures. The Judge wrote:

    There is no indication that he has personally participated in any form of violence except insofar as being a consumer of child pornography supports and encourages violence against its child victims.

    He's a pedophile, not a predator.

    Yes, home detention is an ankle bracelet.


    Thanks, Jeralyn (none / 0) (#6)
    by gyrfalcon on Thu Aug 14, 2008 at 12:58:44 AM EST
    So "supervised release" is essentially meaningless for this kind of thing.

    Do we have any research that shows that guys who like to look at dirty pictures of children are no threat to actual children?

    I'm in favor of compassion, but I'm also in favor of protecting the public, especially children.  I have no interest in "punishing" this guy or others like him, only in preventing them from preying on actual people.  I've said here before I'd be happy, as a taxpayer, to pay for them to live in utter luxury for the rest of their lives, as long as they're kept away from society.


    Reading this more carefully (none / 0) (#8)
    by gyrfalcon on Thu Aug 14, 2008 at 01:14:09 AM EST
    that's a pretty big "except" in there, IMHO.

    One of the problems here, Jeralyn, is that sexual abuse of children is self-perpetuating.  Abused children, especially if, as in many, many cases, the abuse isn't discovered until way too late, if at all, often become hyper-sexualized and themselves become abusers.  Adults at least have some psychic self-defense against the violation of rape, but children don't and they internalize the "lessons" in incredibly unhealthy and destructive ways.

    I say again I'm not interested in the least in punishing this guy, who is mentally sick and highly likely to have been an abuse victim himself as a child.  I want him irrevocably and inescapably prevented from any contact with children.  I'm a pretty extreme liberal on crime issues generally, but it's unconscionable to me to accept the risk with children's lives and psyches.


    In the sentencing decision, the judge says (none / 0) (#5)
    by jccamp on Wed Aug 13, 2008 at 10:48:07 PM EST
    "Rausch's home was searched and his computer seized along with a three-ring binder containing child pornography.  The property seized contained several thousand images and videos depicting child pornography and child erotica.  It would serve no useful purpose to describe the images charged in the Information or in the massive data taken during the search. Suffice to say it is hard core child pornography. "

    The judge also said "Rausch may not consider himself to be a pedophile, but by any reasonable definition of the term he is."

    The doctor making the Court-ordered psychiatric exam found the defendant "makes me very concerned about his maladaptive sexual behaviors.  He was unable to convey to me that he appreciated the severity of his offenses...<there was an> inability to empathize with his victims."

    I think the judge's decision was reasonable, given the defendant's physical condition, but it should be clear that the defendant is a potentially dangerous individual.  The judge recognized this, and specifically required the defendant to provide DNA specimens - the obvious rationale being some possible future investigation re: the defendant doing something beyond looking at photos and movies.

    I would only add that, IMO, the judge adding quotes supporting his decision from Russian fiction and 12th Century love letters is both trivial and vain. One could find quotes in fiction and the Middle Ages to support any POV, including perhaps that the Earth is flat. He should stick to the law and stop showing off his self-esteemed erudition.

    Oh, great (none / 0) (#7)
    by gyrfalcon on Thu Aug 14, 2008 at 01:05:40 AM EST
    so we can convict him of assault after he's ruined some child's life.  That's wonderful consolation.

    There is no Office of Pre-Crime (5.00 / 0) (#9)
    by kredwyn on Thu Aug 14, 2008 at 08:25:45 AM EST
    You can only arrest and convict folks after they've committed the offense.

    I find the fact that he had that much child p@rn on his computer and in the notebooks reprehensible...and his parole conditions should include serious restrictions of some sort.

    But the possession of such images does not suggest that he's going to abuse someone.


    Well, the presence of the child pornography and (none / 0) (#11)
    by jccamp on Thu Aug 14, 2008 at 12:55:21 PM EST
    the reports of the psychiatrist and PhD psychologist suggest that this person is a very real threat to any child who might wander into proximity of the pedophile.

    Go back to the part about the defendant failing to appreciate the severity of his offenses, and the other - more important - opinion that the defendant had no empathy for his victims. Especially this 2nd part describes a person needing only the opportunity to commit similar crimes, or worse. These 2 conditions are the hallmarks of the serial violent criminal. The doctors also cited the relative solitary nature of his existence, so he had no normal human contact which might tend to restrain his sexual fantasies about children.  

    The judge did impose severe restrictions on the defendant, but the threat level he represents is dependent on the Federal parole and probation persons who monitor this defendant. I am not sure that inspires confidence.


    regardless... (none / 0) (#12)
    by kredwyn on Thu Aug 14, 2008 at 01:34:37 PM EST
    Until the perp actually assaults someone, you cannot...repeat cannot...arrest and convict someone for what you think that person might do at some point in the future.

    I don't recall asserting any such thing (none / 0) (#13)
    by jccamp on Thu Aug 14, 2008 at 04:31:13 PM EST
    as pre-behavior arrest and incarceration. The sentencing guidelines called for something akin to ten years in prison for the crimes the defendant voluntarily pled to. The judge departed downward - 10 years to one day imprisonment - from the guidelines, if I understand his rather florid decision, he did this because the defendant's quality of life would suffer in prison, and a 10 year sentence may have been equivalent to a death sentence since the defendant is on a waiting list for an organ transplant.

    I was pointing out that the defendant remains a very dangerous individual. One of the several reasons for imprisoning individuals is to remove them from a position to commit additional crimes. Instead of addressing that, the judge gives us quotations from the love letters of Abelard.


    It seemed to me... (none / 0) (#15)
    by kredwyn on Thu Aug 14, 2008 at 05:31:46 PM EST
    that you were implying it with your points re: "he's a dangerous fellow...and these people agree with that finding."

    Yeah. He's dangerous. But that doesn't mean we put him away for things he hasn't done, which seemed to be where your points were leading.


    Let me put this another way (none / 0) (#14)
    by jccamp on Thu Aug 14, 2008 at 04:38:55 PM EST
    One of the factors that judges (should) consider when imposing sentence is the likelihood of the individual committing additional crimes. The court appointed doctors described a person who is a classic recidivist. The same doctors said that the defendant would have trouble living in prison, mainly from interaction with other prisoners. The judge decided to afford the defendant a chance at life outside prison. If the parole and probation officers fail in the judge's expectations for controlling the defendant, someone else - probably a child - will pay the price.

    That's my point.


    So... (none / 0) (#16)
    by kredwyn on Thu Aug 14, 2008 at 05:42:04 PM EST
    if you get arrested for drunk driving because you had an extra glass of champagne at your sister's wedding, the judge can then turn around and determine how likely you are to engage in such a practice again and then determine whether or not he should tack extra time onto your sentence just in case you drink again?

    The parole folks need to do their jobs. The system needs to hire more and competent parole folks to do the job.

    But the speculation that he will hurt someone is speculation.

    And the problem with this system is that there needs to be a victim for there to be a crime. Up until someone commits that crime, that person is innocent of that particular crime.


    OK, I'll use your analogy (none / 0) (#17)
    by jccamp on Thu Aug 14, 2008 at 08:09:11 PM EST
    You get arrested for DUI because you endangered yourself and others by driving while impaired. Two court-appointed doctors examine you after you plead guilty, and determine that you have a long-standing substance abuse problem and that you are likely to drive impaired again, since being impaired is your normal state, and you don't see any harm in driving while impaired. Yes, the judge can take that into consideration and structure your punishment for the original DUI offense accordingly.  

    That's what judges do, and that is why there was such objection to mandatory sentencing. It removed the judges' discretion.

    If I said that the DUi arrestee normally never drank, and the doctors recommended a lenient sentence since he was very unlikely to drive while impaired again, would you object? It's the same principle.

    This is why statutes normally describe a range of punishment, from zero time and probation, to multiple years in prison.  


    But they cannot (none / 0) (#18)
    by kredwyn on Thu Aug 14, 2008 at 08:29:50 PM EST
    determine that you're actually going to drink and drive again.

    They can only guess and speculate.

    Statutes? Degrees? You mean like the ones that follow stasis theory to determine how bad the actual crime was and then sentence accordingly?

    The judge is still adjudicating on the facts of the case in front of him/her...and sentencing accordingly. He or she is not tossing folks into prison based on the possibility of future crimes.


    Are you being deliberately obtuse? (none / 0) (#19)
    by jccamp on Thu Aug 14, 2008 at 09:39:11 PM EST
    Here are some of the data contained within a pre-sentencing report prepared for Federal judges, so that they may consider the contents before imposing sentence:
    "(A) the defendant's history and characteristics, includ-
    (i) any prior criminal record;
    (ii) the defendant's financial condition; and
    (iii) any circumstances affecting the defendant's be-
    havior that may be helpful in imposing sentence or in
    correctional treatment;
    (C) when appropriate, the nature and extent of nonprison
    programs and resources available to the defendant"

    From the U S Sentencing Commission, one of two theories used to create Federal sentencing guidelines:
    "This theory calls for sentences that most effectively lessen the likelihood of future crime, ...by...incapacitating the defendant."

    Judges get to consider the likelihood of a defendant committing new crimes when imposing sentence. They can do this by considering medical and psychiatric evaluations, whether the defendant accepts responsibility for his/her crimes, past criminal history, and any number of other factors.

    Another example: a defendant who has numerous prior convictions for similar crimes will get a disproportionately greater sanction than a first time offender. it's not because the repeat offender's crime is more serious than the first timer (in fact, the opposite may be true). it's because the repeat offender has demonstrated a propensity for committing more crime, and the previous sentences obviously failed to curtail that propensity to commit crimes.

    Back to your example, if from past history or current data, the DUI defendant seems likely to repeat his/her crime, then the sentence will reflect the judge's view of that.


    Frankly... (none / 0) (#20)
    by kredwyn on Thu Aug 14, 2008 at 09:40:59 PM EST
    I think we're talking past each other.

    If I break the law and plead guilty to the crime, I expect that I will punished accordingly. I don't think that I should be given further punishment for something I might do in the future based on pseudo-scientific speculation.


    OK, didn't mean to sound harsh (none / 0) (#21)
    by jccamp on Fri Aug 15, 2008 at 07:09:30 AM EST
    we just see it differently.



    For your information (none / 0) (#10)
    by caramel on Thu Aug 14, 2008 at 10:26:34 AM EST
    This is how his name is spelled:

    Fyodor Dostoevsky