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NY Judge Rejects Mandatory Minimum in Child P*rn Case

U.S. District Court Judge Jack Weinstein is on a mission. It's not his first. He frequently fights what he calls "the unnecessary cruelty of the law.”

Judge Weinstein was in the news today for his latest crusade which has lasted three years, finding ways to avoid imposing a five year mandatory minimum sentence for a defendant convicted of receiving child p*rn on his computer.

Judge Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed “no risk to society.”

[More...]

Judge Weinstein explains his position:

“I don’t approve of child p*rnography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.

“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

He's not the only judge balking at the lengthy sentences:

In one recent case, James L. Graham, a United States District Court judge in Ohio, sentenced a 67-year-old man who had suffered a stroke to a single day in prison, along with restrictions on computer use and registration as a sex offender. As part of a deal with prosecutors, the man had pleaded guilty to possession of child p*rnography, which carries no mandatory sentence.

“When you have to sit there on the bench and look at someone like my stroke victim and say, ‘I have to send this man to prison for six years,’ it just doesn’t feel right,” he explained in an interview. “It’s not right.”

Last week, the Second Circuit tossed a 20 year sentence in another case, holding:

....[T]he sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.

How did we end up with the five year mandatory minimum sentence for receipt of child p*rn and restrictions on sentencing departures in child sex offense cases? Through the PROTECT Act and its Feeney Amendment which we railed against plenty back in 2003. (Official title: the ‘‘Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003’’ or ‘‘PROTECT Act’’.)

Congress snuck it in as part of the Amber Alert package and everyone was afraid to vote against the Amber Alert bill. One who pushed really hard for it: Joe Biden, because it also contained his revised "Rave Act" bill, called the "Illicit Drug Anti-Proliferation Act." (See Section 608)

Senators like Ted Kennedy and Patrick Leahy opposed the Feeney Amendment but voted for it so as not to face consequences from voting against the Amber Alert portion, and promised at the time to work to repeal it. They later introduced "The Judges Act" which would have left the increased child p*rn penalties stand but restored judicial discretion in sentencing, and of course it went nowhere. (As I always say, once you give power to the Government, it rarely gives it back.) Luckily, the Supreme Court's later decisions starting with Booker that made the guidelines discretionary nullified the Feeney Amendment portion of the bill. But, nothing has been done to eliminate the the 5 year mandatory minimum penalty.

The effect of Congress's increased penalties on sentences? The Times article on Judge Weinstein says:

According to the federal defenders' office, the average sentence was 91 months in 2007, up from 21 months a decade before.

The U.S. Sentencing Commission published this detailed history of changes to child p*rn laws and sentencing guidelines in October, 2009. (See page 38 for details on the passage of the 5 year mandatory minimum and restrictions on departures, and pages 44-49 for how the Sentencing Commission increased the guidelines as directed to by Congress.)

Congress is still busy passing new offenses related to child p*rn. In 2009, it created a new crime of production of a morphed image of a minor with intent to distribute or distribution of a morphed image. See, 18 U.S.C. § 2252A(a)(7) which has a statutory maximum of 15 years. (A morphed image means "an adapted or modified depiction of an identifiable minor.”) Simple possession of a morphed image(as opposed to possession with intent to distribute the image or production of the image) is not a federal crime ... yet.

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  • Display: Sort:
    The problem I have always had with (5.00 / 2) (#19)
    by Anne on Sat May 22, 2010 at 11:00:47 AM EST
    mandatory anything is that it cannot take into account the totality of any situation or event - and sometimes that matters - at both ends of the spectrum.

    That being said, the only thing I have to say about people who patronize the child p*rn industry is: these people are sick.  No one has been able to convince me that the perv who gets off looking at pictures or movies will not one day decide he needs the real thing, which makes this person a potential danger to children.  Period.

    But the perv looking at this stuff is only part of the problem; yes, the pervs helps keep it going, but does anyone doubt that if there were a dearth of producers of this garbage, it would still exist?

    Is a murderer worse than a guy with a kiddie-p*rn collection?  Depends on whether it's your kid who got molested by the rec league softball coach who - surprise, surprise! - also has a large collection of child p*rn in his home...

    I still have no idea why the courts cannot take each case, on its own merits, and deal with the facts and circumstances as they exist and if convictions follow, sentence according to the facts of the case, and not some arbitrary minimum requirement.

    Seems to me that mandatory minimums are no more effective in deterring the commission of crimes than the death penalty is.  And that also needs to go by the boards.

    The guy who was stalking (none / 0) (#41)
    by jondee on Sat May 22, 2010 at 01:19:25 PM EST
    one of my kids also had a large "collection." Does it necessarily follow that every person who savors that type of imagery will at some point attempt to bring the fantasy to life? Probably not. But, those people should, at the very least, make an effort to examine the implications of what they're patronizing as consumers, if the depictions are of ACTUAL children.

    What a freak show this world is sometimes. Someone should sell tickets..

    Parent

    Mandatory Minimums (1.00 / 1) (#17)
    by squeaky on Sat May 22, 2010 at 10:48:43 AM EST
    A favorite strategy of GOPers and many who voted for Hillary but would not vote for Obama.

    What is up with that?

    We got all the way to comment #17 (5.00 / 1) (#22)
    by Democratic Cat on Sat May 22, 2010 at 11:30:11 AM EST
    before someone pulled out a mention of Hillary.  I guess that's an improvement.

    I think you paint with too broad a brush.

    Parent

    I like the way she framed them/us (none / 0) (#25)
    by nycstray on Sat May 22, 2010 at 11:54:30 AM EST
    this time

    any who voted for Hillary but would not vote for Obama.

    hmmm, is that to exclude herself who voted for Obama after supporting H?

    Never realized sticking to your principles turned you into a GOPer . . . wish she had told me before I registered here in CA as a Green, lol!~


    Parent

    Possibly (none / 0) (#26)
    by squeaky on Sat May 22, 2010 at 11:56:14 AM EST
    But it is indisputable that a large number of those who came to TL in 2008 to support Hillary, and who refused to vote for Obama, have identical positions on crime, as the GOP trolls that used to frequent this site. Perhaps using an even broader brush would suggest that those who were the mirror image (Obots) also shared the same tough on crime positions, that used to be the sole provence of our long lost GOP trolls...  Hard to say, because TL did not attract that crowd, but I would not be surprised if that were also true.

    Those who saw little difference between Obama and Hillary, (lukewarm on both) seem to be more in keeping with the spirit of this site, regarding crime issues, imo.

    Parent

    Perhaps, but (none / 0) (#37)
    by Democratic Cat on Sat May 22, 2010 at 12:47:11 PM EST
    it comes across as you trying to tweak and poke and get a rise out of people. I think you often make good comments and I often agree with you, but as an ultra-liberal Hillary-supporter who voted Green rather than for Pres. Obama (in the safest of safe Dem "states") your comments sometimes make me cringe.

    But, I believe free speech is paramount so I can't complain too much.  It's a lovely, if somewhat humid, day so I'm going to step away from the screen and go enjoy it.  Hope you are doing the same.

    Parent

    OK (none / 0) (#40)
    by squeaky on Sat May 22, 2010 at 01:11:52 PM EST
    Well, I can understand if you see it that way...

    At the very least, I feel honored to provide you with a service that may lead to your spiritual development, in that one day you may be able to adjust and no longer cringe, yet still maintain your high level of sensitivity.

    Parent

    Hasty generalization fallacy (none / 0) (#42)
    by sj on Sat May 22, 2010 at 01:25:11 PM EST
    indisputable ... large number ... identical positions ... GOP trolls.  That's a hasty generalization logical fallacy.  Promptly followed by an even broader brush.  I suspect that you'll justify your bias by saying that you have a large survey pool.  Whatever.  You cling to your biases in the face of "indisputable" evidence: the commenters actual writings.

    And your "conclusion" in the final sentence cracked me up.  It makes squeaky a good TLer, anyone with stronger opinions a bad TLer.  

    lol

    My personal conclusion is those who invite honest discussion -- even when I vehemently disagree with their positions (oculus is a good example) -- add to my appreciation of this site.  Neener, neener you're an Obot and neener, neener you're a Hilbot is just chatter.  Not discussion.


    Parent

    Nothing Hasty (none / 0) (#45)
    by squeaky on Sat May 22, 2010 at 01:43:55 PM EST
    But the comment archives are there for all to see, should anyone endeavor to pursue a statistical study. I would love to be shown to be wrong...

    In any case, the commenters on this site who were tough on crime, pre 2008, were almost entirely GOP, save for one or two independents.

    After 2008, among others, most of them stopped commenting here, and were replaced by the flood of Hillary supporters. I suppose that an argument could be made that any large influx of new commenters who arrive at a site because of a particular topic (Hillary, Duke Rape Case, eg) are bound to include a certain percentage of people who have contrary values to the longstanding position of the site.

    Thank the sun god that most of the conservative worshipers disappeared soon after Obama got the nomination...

     

    Parent

    I didn't say your comment was hasty (none / 0) (#61)
    by sj on Sat May 22, 2010 at 02:41:56 PM EST
    I said your logical fallacy was the hasty generalization fallacy.  And the one thing I learned in statistics is how easily they can be manipulated.  Frankly, don't remember much else about it. :(

    Parent
    ah, one more thing... (none / 0) (#63)
    by sj on Sat May 22, 2010 at 03:32:39 PM EST
    ... speaking strictly for myself.  The comment archives don't interest me much.  I don't expect people to remain static.  I'm much more interested in what people are thinking now.

    Parent
    Yes (none / 0) (#65)
    by squeaky on Sat May 22, 2010 at 03:52:09 PM EST
    me too... As far as static... not so sure. Maybe when people change they stop commenting.. lol

    Parent
    hmmmm... I don't think we view it the same way (none / 0) (#71)
    by sj on Sat May 22, 2010 at 04:30:14 PM EST
    It appears to me that you are always holding up a lens of (your interpretation of) previous comments which makes it your (squeaky's) perspective that is static, not the actual commenter.

    In my world everything is new and can standalone on its own merits.  But then I don't have bandwidth to worry about much of what came before.  In other words, what is someone saying today that's interesting.  Overall, folks here are smart and articulate and think of all kinds of things I haven't thought of before.  I don't worry too much about someone else's intellectual journey. I'm more interested in how their thoughts validate or challenge my intellectual journey.  Selfish, kinda, but then I don't really know y'all. :)

    Except for maybe kdog. :) He seems to be about the most real online persona I've ever encountered.

    Parent

    Hmmm... (none / 0) (#72)
    by squeaky on Sat May 22, 2010 at 04:36:52 PM EST
    It appears to me that you are always holding up a lens of (your interpretation of) previous comments which makes it your (squeaky's) perspective that is static, not the actual commenter.

    Not sure how that squares with this:

     

    The comment archives don't interest me much. I don't expect people to remain static.  I'm much more interested in what people are thinking now.

    Not sure how you can castigate me for "always" when you say you are interested in staying in the present...  and considering that I agreed with you...  hmmmm is right..


    Parent

    I knew you'd pick up on that :) (none / 0) (#73)
    by sj on Sat May 22, 2010 at 04:54:29 PM EST
    Mostly I remember you because of the thread-jacking.  Once that starts I often just scroll past the whole thing -- which, frankly, I find disconcerting.

    I've always had the mentality that once I start reading something I have to read ALL of it.  Having a subscription to Time magazine years ago was really stressful to me because there is an awful lot in that magazine that just flat out didn't interest me and I felt compelled to read it cover-to-cover.

    Scrolling through a bunch of comments makes me feel like a slacker.  Plus, I just know I'm missing some good stuff.  

    Also I remember you because you posted that you are an artist.  And I had just lost my artist brother prior to reading that.  So I noticed.  And remembered.  For his sake, I had to learn years ago that sometimes you just have to cut an artist some slack.  Although in fairness, his logic was also razor sharp.  Lifestyle maybe not so much.  It's a tough road, living life as an artist.

    Parent

    Sorry To Hear of Your Late Bro... (none / 0) (#74)
    by squeaky on Sat May 22, 2010 at 04:59:06 PM EST
    That is a tough thing to bear..

    Parent
    thank you (none / 0) (#78)
    by sj on Sat May 22, 2010 at 05:10:55 PM EST
    It really is tough.

    Parent
    Why wouldn't they? (none / 0) (#43)
    by Rojas on Sat May 22, 2010 at 01:36:28 PM EST
    It seems odd to expect anything different. The clinton's special talent was outflanking the right on the right. She ran as an incumbent. I expect those who supported her were of the opinion more is better.

    Parent
    Don't you think those who supported (none / 0) (#46)
    by oculus on Sat May 22, 2010 at 01:45:45 PM EST
    Hillary Clinton in the primaries liked what she was saying?  Same re those who supported Barack Obama in the primaries.  I still haven't figured out why a person who supported Clinton in the primaries either didn't vote in the GE or voted for someone other than Obama.

    Parent
    I think that's (none / 0) (#51)
    by Rojas on Sat May 22, 2010 at 01:57:53 PM EST
    what I just said. It wasn't space aliens that built the prison nation in the 90s.


    Parent
    Democrats (none / 0) (#53)
    by squeaky on Sat May 22, 2010 at 02:01:15 PM EST
    It could as easily been Obama...  their positions on crime were/are almost identical.

    Parent
    Right wing space aliens (none / 0) (#60)
    by jondee on Sat May 22, 2010 at 02:41:16 PM EST
    armed with death rays, who coerced the deeply caring, iron willed ones to outflank them with Crime Bills and Free(for some)Trade arrangements etc

    Parent
    Ah! So that's what he meant. (none / 0) (#67)
    by Rojas on Sat May 22, 2010 at 04:08:41 PM EST
    Ifeelyourpain...
    As we yelled in vain, Go back! It's a cookbook!

    Stay tunned, in our next episode Chuck Schumer, friend of everyman, will assume leadership of the senate. His service to date, protecting Wall Street from the ravages of a right wing armed with a deregulation ray.


    Parent

    Identity Politics (none / 0) (#52)
    by squeaky on Sat May 22, 2010 at 01:59:18 PM EST
    For some the decision who to support had less to do with the candidates actual positions, than the supporters own self identification with the candidates.

    Many of those who decided not to vote in the general, or not vote for Obama, decided that Obama was so mean and nasty to Hillary that is was as if Obama was personally attacking them. Identity politics, cultism and fanclub mentality do not make for the best voter decisions, imo.

    Parent

    I think you get to speak for (5.00 / 1) (#64)
    by Anne on Sat May 22, 2010 at 03:47:27 PM EST
    yourself; your attempt to define the reasons why others did or did not support a particular candidate is - given the ad nauseam discussions from people who took the time to explain their views and rationale - a gigantic FAIL.

    I know you want it to be about what you have described, I know you think it helps your "cause" against anyone who doesn't share your views to reduce overt and rampant sexism to "mean and nasty" (I still do not understand why someone who is allegedly female would take that view), and lump the Party's efforts to manipulate, ignore and bypass its own rules even if it meant the disenfranchisement of the voters into that same category, and I know it makes you feel better to belittle anyone who did not and does not share your your opinion, but you really, really need to let it go.  Or, acknowledge that what people give as their reasons ARE their reasons.

    If ever there was a case of cultism and fanclub mentality, it was in the Obama camp for a lot - a lot - of people.  And while there was a contingent of Hillary supporters who took a more militant approach once the fix was in for Obama, I would venture to guess that, of the people commenting here now, and for the last almost-two years, that group is barely, if even, represented at all.

    And for reasons that escape me, you seem to have decided that if one supported Hillary, he or she was necessarily a "tough on crime" proponent; can you possibly have forgotten that this site's owner was a strong supporter of Hillary up to the point where Obama got the nomination?  Can you possibly have missed out on the reams and reams of comments decrying Obama's own tough-on-crime stance from those who supported Hillary, and later voted - or not - for Obama?  

    If I were a tough-on-crime proponent, I should be loving the Obama presidency, shouldn't I?  I should love the do-whatever-we-have-to-do-to-be-safe agenda that Obama seems to be fully on board with, right?

    But, I'm not - and neither are the majority of those who were Hillary supporters - so where does that leave your argument?  Stripped of all logic and reason, it leaves your comments for what most of us know them to be: personal attacks that seem to stem from some weird resentment that you've been burdened with sharing TL with those who weren't here "from the beginning."  

    That's just sad.


    Parent

    I think one always (none / 0) (#66)
    by jondee on Sat May 22, 2010 at 04:05:50 PM EST
    has to be very careful about thinking they speak for "the majority" of any group; it's often just another manifestation of "Identity Politics", ie what I think is what everyone thinks.

    Parent
    Boo Hoo (none / 0) (#68)
    by squeaky on Sat May 22, 2010 at 04:12:07 PM EST
    I know you think it helps your "cause" against anyone who doesn't share your views to reduce overt and rampant sexism to "mean and nasty" (I still do not understand why someone who is allegedly female would take that view)

    Last time I checked Hillary was female... Oh, right, in order to maintain your outrage, you must have rationalized her moving on.

    If ever there was a case of cultism and fanclub mentality, it was in the Obama camp for a lot - a lot - of people.

    Anyone who would say that there was a chasm of difference between Hillary and Obama was on kool aid.

    And for reasons that escape me, you seem to have decided that if one supported Hillary, he or she was necessarily a "tough on crime" proponent; can you possibly have forgotten that this site's owner was a strong supporter of Hillary up to the point where Obama got the nomination..

    Yeah, compared to McSame, or any of the other GOP choices Hilary and Obama were better. Jeralyn supported Edwards first, then moved on to Hillary and then Obama. Not sure what that has to do with anything other than pragmatism. Were Jeralyn or anyone else on the left able to appoint a president, it would not be Hillary, Obama or Edwards. That is for sure.

    And as for your position on crime, you do seem more to the left than many of the others here. I never cast an net that was absolute, "many" has been the word I have used in my generalization about Hillary fanatics.

    - so where does that leave your argument?  Stripped of all logic and reason

    And as much as you believe that you are the almighty stripper of all logic and reason commenter, just because you say it, doesn't make it so.

    personal attacks that seem to stem from some weird resentment that you've been burdened with sharing TL with those who weren't here "from the beginning."
     

    Hardly the case, but for sure there are many new and old commenters whose opinions I heartily disagree with, including your own.

    Parent

    For the love of God... (none / 0) (#70)
    by Anne on Sat May 22, 2010 at 04:29:43 PM EST
    give it up; you embarrass yourself with "arguments" a high school debate team would eat for lunch.

    No one's buying what you're selling.

    Parent

    Not In High School (none / 0) (#75)
    by squeaky on Sat May 22, 2010 at 05:01:35 PM EST
    Nor in a debate club. And once again, just because you say it is so, doesn't mean it is.

    And I am hardly embarrassed, prof.

    Parent

    Is there any remedy other than (none / 0) (#1)
    by oculus on Sat May 22, 2010 at 01:22:49 AM EST
    impeachment if a federal district judge refuses to follow statutory sentencing laws?

    But he does follow the law (none / 0) (#2)
    by Jeralyn on Sat May 22, 2010 at 01:33:23 AM EST
    ...creatively. He began by granting the defendant a new trial on grounds that he erred in not instructing the jury properly:

    Judge Weinstein declared that Mr. Polizzi had a constitutional right to have a jury know the punishment that would accompany a guilty verdict, a right he said he had violated. He pledged to inform the next jury of the mandatory minimum sentence. That idea, floated by a federal judge in Manhattan several years earlier in another child pornography case but rejected on appeal, would give jurors the option of refusing to convict if the punishment seemed disproportionate, as several jurors had indicated they believed it was in Mr. Polizzi's case.

    "That was quite an unusual way of handling it," said Amy Baron-Evans, the national sentencing resource counsel for the federal public defenders' office. "Usually the judges are just stuck with the mandatory minimum."

    The Court of Appeals last year overruled Judge Weinstein's order of a new trial, but left unresolved whether it was permissible to tell the jury about the punishment. The case was remanded, and Judge Weinstein, after consulting with other District Court judges, again ordered a new trial, though this time on different grounds. And again he pledged to inform the jury of the mandatory minimum sentences. That decision is under appeal.

    Also, in the Ohio case, the defendant pleaded to a lesser charge without the mandatory minimum. Has any judge has refused to apply the mandatory minimum?

    Parent

    Very interesting, Jeralyn (none / 0) (#48)
    by Zorba on Sat May 22, 2010 at 01:47:22 PM EST
    Sounds like a judge who actually believes in jury nullification.

    Parent
    Yes, although (none / 0) (#50)
    by Peter G on Sat May 22, 2010 at 01:56:55 PM EST
    the judge says in his opinion that the more accurate term is "rectification."

    Parent
    The Dept of Justice prosecutors have authority (none / 0) (#34)
    by Peter G on Sat May 22, 2010 at 12:27:48 PM EST
    to appeal a sentence they deem to be illegal.  18 USC 3742(b).  The court of appeals, or even the Supreme Court, would then decide.  By the way, I have the privilege of representing the defendant in this case, in opposition to the government's appeal from Judge Weinstein's order granting him (for the second time) a new trial.  

    Parent
    Thanks for the information. (none / 0) (#35)
    by oculus on Sat May 22, 2010 at 12:29:01 PM EST
    Good Luck Peter! (none / 0) (#38)
    by squeaky on Sat May 22, 2010 at 01:01:36 PM EST
    Sounds like you have a fair minded judge, on the case.

    Parent
    To clarify ... (none / 0) (#47)
    by Peter G on Sat May 22, 2010 at 01:46:39 PM EST
    First, TL is right that Judge Weinstein has not refused to impose mandatory sentences on any nonlegal ground, such as personal disagreement.  I don't know any judge who has or would to that.  A judge does nothing wrong, however, by expressing his or her opinion that some of the laws passed by Congress, which the judge is sworn to implement, are sometimes unjust even if valid and applicable.

    Second, to Squeaky and any others: I do not represent Pietro Polizzi in the district court (trial court level).  As Jeralyn has mentioned a few times about me, I am an appeals specialist.  I am only handling the defense of Mr. Polizzi against the government's appeal from Judge Weinstein's order giving him a new trial. (The new trial was granted on the ground that the jury at the first trial may have been confused or unduly prejudiced by the proliferation of counts unlawfully lodged by the prosecutors -- a total of 22 felony counts, when only five separate offenses were properly charged).  In this appeal, the government also attempts to challenge Judge Weinstein's stated intention to inform the jury at the new trial about which counts carry mandatory penalties, and what those penalties are.  We contend that no appeal is allowed from the latter aspect, and that informing the jury about mandatory penalties is within the judge's discretion in any event.  Mr. Polizzi's defense counsel in the trial court is Mitchell Dinnerstein.  

    Parent

    I See (none / 0) (#49)
    by squeaky on Sat May 22, 2010 at 01:52:29 PM EST
    In any case (no pun), they are lucky to have you on board.

    Parent
    It's the deep concern Americans (none / 0) (#3)
    by JamesTX on Sat May 22, 2010 at 04:23:00 AM EST
    have for the safety and well-being of children which is so evident in these mandatory minimum child p*rn and sex offender registration laws. It shows how very, very seriously Americans care about the safety and well-being of children, and it sends a message to those who would harm them.

    Since it is so very important and urgent to protect children by passing laws that allow for no discretion and no recognition of individual circumstances in such cases, I think we should pass some more mandatory minimums to make our children even more safe. An offense I might think would be good a candidate would be throwing a grenade at a child and then shooting her while performing militaristic enforcement maneuvers for television cameras -- to be used for the entertainment of bloodthirsty television audiences. Perhaps those audiences should also get 2 years minimum for veiwing the video. Maybe canceling the health insurance of children with life threatening diseases would make a good mandatory minimum offense. Of course, trafficking in imported manufactured goods that are the result of child slavery under barbaric conditions might make a good mandatory minimum offense. Maybe selling a child's home to investors at auction for some $360 in overdue utilities would make a good mandatory minimum offense. I can think of several others, but that would be a good start -- seeing as how we care so deeply about the safety and well-being of children that the unintended consequences of the laws are tolerable.

    The concern does not run deep enough (none / 0) (#15)
    by Jen M on Sat May 22, 2010 at 10:43:13 AM EST
    To protect children, some as young as 4, from the traumas inflicted when they commit crimes tiny or serious. Kids get killed in places like boot camps and no one says boo. Children prosecuted for "sexting" or for having sex with a boyfriend/girlfriend even though the age difference is 2 years or less.

    If you look at how the law treats child criminals (she drew on a desk, he drew a picture of a gun, she mimed a gun while pretending with friends) then I, for one, conclude we hate children. If we didn't we wouldn't charge a 13 year old as an adult.

    I say again. We hate children - when they misbehave the tinyest bit.  (ie- all of them)

    Parent

    Asterisk? (none / 0) (#4)
    by Lacy on Sat May 22, 2010 at 06:24:21 AM EST
    Obviously I'm out of the loop, but could someone tell me why we're writing "p*rn"?

    Because of filter (none / 0) (#6)
    by nyjets on Sat May 22, 2010 at 07:33:36 AM EST
    Computers at libraries and colleges have filters that will not show webpages  with certain words, like 'p*rn.' Because this is obivously a clean website, people will type certain words  like 'p*rn' so that the website will be shown.


    Parent
    and law firms use them too so (none / 0) (#81)
    by Jeralyn on Sun May 23, 2010 at 03:17:14 PM EST
    those words get us blocked at law firms. Same for profanity. Once blocked, it's really an ordeal to track down the software company who makes the filter and get TL unblocked. I had to do it once and I don't want to repeat the process. It's easier to just use asterisks.

    Parent
    Gee (none / 0) (#5)
    by coast on Sat May 22, 2010 at 06:33:51 AM EST
    "he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children".

    So long a "he" doesn't believe they are a threat then I guess those residents in his area have to be ok with that.  Juries are overrated anyway.

    "We're destroying lives unnecessarily," - yes, except its the kids' lives that are/have been destroyed.

    Message to the judge.  Go ahead and inform me what the minimum is.  I will still vote guilty!

    You should have that right (5.00 / 1) (#18)
    by Jen M on Sat May 22, 2010 at 10:48:50 AM EST
    As a juror to know the facts, including the potential sentence, before you make YOUR decision.

    I don't know the laws regarding informing juries of the sentences for the charges but I firmly believe that jurors need to know.

    Because sometimes the mandatory is too much in some case or other. So the jury is the failsafe.

    Parent

    Except in cases where prosecutor's (none / 0) (#39)
    by oculus on Sat May 22, 2010 at 01:09:38 PM EST
    office is seeking death penalty, which involves jury (but judge may reject jury recommendation), in California state court criminal cases the jury is not told about potential sentences, should the jury return a guilty verdict.  Jury's job is determine, based on the it's determination re facts, and law via judge's jury instructions, whether the defendant is guilty.  Imposing sentence, after consideration of probation report, argument of counsel, etc., is the exclusive province of the judge.  

    Parent
    Same in Michigan (none / 0) (#55)
    by jbindc on Sat May 22, 2010 at 02:20:05 PM EST
    As a matter of fact, the state court judge I worked for would specifically instruct the jury that they were not to consider any potential sentences while determining the verdict.  Their only job was to determine if the prosecution had proved its case beyond a reasonable doubt.

    Parent
    thanks (none / 0) (#56)
    by Jen M on Sat May 22, 2010 at 02:31:15 PM EST
    for the info

    Parent
    perhaps (none / 0) (#57)
    by Jen M on Sat May 22, 2010 at 02:35:30 PM EST
    But in cases of minimum sentences?

    I know of at least one person who might still be alive today if he hadn't been convicted of sex with his girlfriend. (who was over the legal age and two years younger)

    His parents were left to clean up what the shotgun left of him. The minimum sentence in his case was way too much.

    Parent

    Very sad. (none / 0) (#59)
    by oculus on Sat May 22, 2010 at 02:38:19 PM EST
    Query:  if the female was over the age of consent, and the sex was consensual, what was he convicted of?

    Parent
    I need to ask my friend (none / 0) (#62)
    by Jen M on Sat May 22, 2010 at 02:45:20 PM EST
    but it was the father behind the push.

    Whatever he was convicted of left him on the list at 19.  He wasn't on it that long though.

    Parent

    What child's life did the man destroy? (none / 0) (#7)
    by observed on Sat May 22, 2010 at 07:47:27 AM EST
    If you buy a piece of porcelain, should we sentence you to prison because of the health effects of the mining?
    If you buy a new computer, I think 6 months in jail would be a minimum for the amount you take off of the lives of the workers in the high tech industry.


    Parent
    Really....I mean REALLY. (none / 0) (#9)
    by coast on Sat May 22, 2010 at 07:59:12 AM EST
    Mandatory Sentencing (none / 0) (#10)
    by mmc9431 on Sat May 22, 2010 at 08:23:07 AM EST
    Justice isn't black and white. If this was the case we could eliminate judges and juries and leave it to the computers.

    A guy who beat a gay man to death received less of a sentence than a 67 yr old guy sitting at his computer. And we preach justice!

    In our zeal to be tough on crime we've lost touch with reality.

    Parent

    Slippery slope (none / 0) (#11)
    by mmc9431 on Sat May 22, 2010 at 09:27:47 AM EST
    I think we all should be concerned when the government can criminalize a thought or a fantasy. Where does it end? Do violent movies or music create murderers? What about all the anti government sites that promote violent civil unrest? A thought is not necessarily an action.

    People that indulge in sex with children fully deserve to be imprisoned,(as do the people that exploit it) I don't agrue that. But I think we're treading on dangerous ground.

    Parent

    Hmmmm (none / 0) (#12)
    by jbindc on Sat May 22, 2010 at 09:32:04 AM EST
    Didn't see anything in the judge's bio that indicates he is an expert in psychology, psychiatry, mental illnesses, so I'm not sure how he makes a pronouncement that child p*rn isn't a threat to children (gee - what about the kids in the actual pictures?)

    A truly stupid comment by an otherwise pretty good judge.

    Parent

    I believe there have been cases in (none / 0) (#8)
    by observed on Sat May 22, 2010 at 07:50:20 AM EST
    Japan recently centering on whether comic book or digital (fake) depictions of child p*rn are illegal.
    That's an interesting question.
    There's no remedy for people interested in children---that is, the underlying desire will not go away.
    Wouldn't it be better to allow digital fake p*rn?
    Is that legal under US law?

    Here's a link... (none / 0) (#23)
    by EL seattle on Sat May 22, 2010 at 11:43:34 AM EST
    ... that covers the proposed changes in Japan, and mentions the most notorious stateside case involving manga (the Christopher Handley case).

    Link to: The Comic Book Legal Defense Fund's website.

    Parent

    Funny (none / 0) (#24)
    by jondee on Sat May 22, 2010 at 11:51:08 AM EST
    how radically one's perspective can shift once one of the tormented souls who is QUITE PREPARED to act out the fantasy, imposes themselves directly on your life and loved ones.

    Some might be amazed at how radically it can shift..
    Like Christopher Hitchens getting his WOT on after 9-11..

    Nothing like a little trauma to becloud one's adamantine idealism..  

    Parent

    Funny how I can distinguish between (none / 0) (#27)
    by observed on Sat May 22, 2010 at 12:00:51 PM EST
    those people who actually act on their fantasy and those who don't. Can you?

    Parent
    You mean before they do? (none / 0) (#28)
    by jondee on Sat May 22, 2010 at 12:05:38 PM EST
    No I cant; not always. What's your secret?

    Parent
    The most destructive fantasy (none / 0) (#33)
    by jondee on Sat May 22, 2010 at 12:23:43 PM EST
    is that "other people" (children, creatures etc) are primarily means to an end. All the other more glaringly destructive fantasies are just an outgrowth of that first one..

    Parent
    Manga Is A Crime in the US (none / 0) (#29)
    by squeaky on Sat May 22, 2010 at 12:07:04 PM EST
    In an obscenity first, a U.S. comic book collector has pleaded guilty to importing and possessing Japanese manga books depicting illustrations of child sex abuse and bestiality.

    Christopher Handley, described by his lawyer as a "prolific collector" of manga, pleaded guilty last week to mailing obscene matter, and to "possession of obscene visual representations of the sexual abuse of children." Three other counts were dropped in a plea deal with prosecutors....

    Handley's guilty plea makes him the first to be convicted under that law for possessing cartoon art, without any evidence that he also collected or viewed genuine child pornography. He faces a maximum sentence of 15 years in prison.

    link

    Parent

    Quite effective, actually. (none / 0) (#36)
    by oculus on Sat May 22, 2010 at 12:30:35 PM EST


    spare the child (none / 0) (#44)
    by diogenes on Sat May 22, 2010 at 01:43:17 PM EST
    1.  By having such draconian sentences, someone can be sentenced to years in prison for possession of p-rn without having to drag in four year old victims when there are both victims and possession charges.
    2.  Possessing such stuff (except pure "cartoon art" means that someone overseas is victimizing children to make and sell it.
    3.  How many of those who m-turbate to four years olds never, ever use those rehearsals to carry out their desires?
    4.  Isn't this the very worst example of legislating from the bench?  


    Neither convincing nor lawful (none / 0) (#76)
    by Peter G on Sat May 22, 2010 at 05:04:26 PM EST
    In other words:
    1.  If you impose excessive sentences for minor crimes committed by many you don't have to prosecute the few actual perpetrators of serious crimes and prove them guilty.  Perhaps true, but unacceptable to any sense of justice.  (Four year olds don't generally testify as witnesses, by the way.)
    2.  Not necessarily overseas.  Unfortunately a fair amount is made in American homes (by stepfathers and "boyfriends" of the child's mother in most of the cases I've been close to, sadly).  Yes, it is true that each picture that is possessed had to be made somewhere by someone.  Not true that all of it is sold, however. Much is traded by those whose psychological conditions (mostly as a result of having been sex abuse victims themselves, it appears to me) lead them to want it.
    3.  A very controversial topic, on which well controlled and reliable research is incredibly difficult to conduct.  A couple of recent and much-touted studies done in federal prisons that purported to show a high correlation have since been debunked and disavowed.  That doesn't mean that they were wrong; it seems we don't know.
    4.  No, not at all.  There is no basis for that assessment in either the Times article or in TL's post about it.


    Parent
    I think the title of this post gives rise (none / 0) (#77)
    by oculus on Sat May 22, 2010 at 05:08:35 PM EST
    to the inference the trial court/sentencing judge is "legislating from the bench."  Doesn't appear to be accurate though, as Jeralyn pointed out.  

    Parent
    Heh (none / 0) (#79)
    by Wile ECoyote on Sun May 23, 2010 at 06:22:47 AM EST
    Mirror anyone?

    Yes (none / 0) (#80)
    by squeaky on Sun May 23, 2010 at 10:32:18 AM EST
    You do mirror jbindc's views on crime. Thank you for popping up, to remind us of one of TL long time conservative voices..

    Parent
    I deleted the personal attack (none / 0) (#82)
    by Jeralyn on Sun May 23, 2010 at 03:18:22 PM EST