Hopefully this is the start of going toward a more sane approach to dealing with this problem as it is never a good thing to allow emotions to overrule reason.
http://www.law.com/jsp/article.jsp?id=1202474036131
Appeals Courts Criticize Child Porn Sentencing Guidelines
Shannon P. Duffy
The Legal Intelligencer
October 28, 2010
As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian.
Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so.
One of the key flaws cited by many of the judges is that the harsher penalties were imposed directly by Congress, every time the guideline was amended, rather than the usual process in which the Sentencing Commission studies an issue and proposes changes that are then subject to congressional approval. Prosecutors have been fighting the trend by urging trial judges to follow the guidelines and sometimes by taking appeals from those who don't.
But a decision in May from the 2nd Circuit and another this week from the 3rd Circuit suggest that the Justice Department may be waging a losing battle, and that trial judges are now freer than ever to reject the child pornography guidelines in cases where the judge sees the suggested punishment as too harsh.
In United States v. Grober, the Justice Department urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for David Grober was "outrageously high." Hayden, who sits in New Jersey, set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair.
Among the flaws cited by Hayden were a series of "enhancements" that, in her view, would apply in almost every case, as well as a failure to distinguish between defendants whose crime involved nothing more than downloading images as opposed to those involved in producing, selling or trading in illegal images. Ultimately, Hayden issued a 46-page opinion that declared the guideline was not worthy of deference. Instead of imposing a term of 235 months, she imposed a term of 60 months.
Now the 3rd Circuit has voted 2-1 to uphold Hayden's ruling, strongly rejecting the Justice Department's argument that Hayden had abused her discretion. Prosecutors argued in the appeal that Hayden had allowed herself to be swayed by critics of the guidelines and had ignored the government's compelling evidence that Congress was justified in increasing the prison terms because the Internet had sparked an "explosion in the market for and production of child pornography."
But Grober's lawyer, Peter Goldberger of Ardmore, Pa., argued that Hayden had properly considered all of the issues, and that "her lengthy and detailed opinion justifying the sentence is the epitome of reasonableness."
Before the 3rd Circuit had a chance to rule in Grober's case, the 2nd Circuit handed down its opinion in United States v. Dorvee, a ruling that overturned a within-guidelines sentence in a child pornography case on the grounds that the sentence was too harsh.
The Dorvee court echoed many of the concerns cited by Hayden. It declared that the child pornography guideline was "fundamentally different" from other guidelines and that, unless it is "applied with great care, can lead to unreasonable sentences."
The 2nd Circuit also faulted the guidelines for failing to distinguish between "run-of-the-mill" offenders and the most dangerous offenders, citing as proof of the "irrationality" of the law that a defendant who actually engages in sexual conduct with a minor may be subject to a lower guidelines range than one who distributes child pornography. As a result, the 2nd Circuit concluded that the "eccentric guideline of highly unusual provenance" is not worthy of the weight afforded to other guidelines.
Now the 3rd Circuit has cited Dorvee with approval as it rejected the Justice Department's appeal of Hayden's sentencing rationale. Writing for the court, Judge Maryanne Trump Barry found that Hayden's ruling was not an abuse of discretion. Barry, who was joined by Judge Dolores K. Sloviter, found that Hayden had "set forth an explanation that we find to be sufficiently compelling, and well grounded" to justify her decision, and "adequately explained" why she found the guideline to be flawed.
In a lengthy dissent, Judge Thomas M. Hardiman said he recognized that Hayden was moved by "a candid fear that Congress's zeal to address the proliferation of child pornography has resulted in penalties grossly disproportionate to the culpability attendant to this type of crime."
But Hardiman said he believed it is wrong for a sentencing court to "categorically reject the validity of a guideline by impugning generally the plea bargaining system." Hayden, he said, had faulted the prosecutors for offering a guilty plea deal early on that would have resulted in a much lighter sentence, but threatened that if the deal were rejected, they would insist that the harsh guidelines be applied.
Rebekah Carmichael, the public affairs officer for the U.S. Attorney's Office in New Jersey, said prosecutors would not have any immediate response to the ruling.
Defense attorney Goldberger applauded the ruling as "giving support and encouragement to district court judges to use their own judgment and to disagree with the guidelines when they believe they do not serve the ends of justice."
