Judge Jack Weinstein's Battle with Child Pornography Sentences

September 22, 2010 (Press-News.org) Judge Jack Weinstein has sat on the bench for 43 years, and has heard thousands of cases. He has authored one of the definitive texts on the law of evidence in federal court. Recently, he has become a champion of a particular type of defendant: Those charged with possession of child pornography.

Those involved with child pornography are usually seen as an unsympathetic lot. Congress has certainly seen them in this light. Since 1997, the average sentence for those convicted of receiving child pornography has increased from 21 months to 91 months.

A New York Times story on Judge Weinstein highlighted these and other troubling elements of the child pornography sentences. Judge Weinstein is not the only judge bothered by what he describes as "the unnecessary cruelty of the law."

Defendant Pietro Polizzi had two convictions thrown out by Judge Weinstein. Under existing law, Mr. Polizzi would have been facing a recommended sentence of 11 to 14 years.

After the conviction, Judge Weinstein took the unusual step of asking the jurors if they would have returned the same verdict if they had known the punishment. Five spoke against imprisonment and two said they would have changed their vote.

A federal 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.

Judge James L. Graham noted, ''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.''

Second Circuit Reverses Unreasonable Sentence

Other cases have produced equally unjust results because of the Sentencing Guidelines mandatory minimums and automatic enhancements. The Court of Appeals for the Second Circuit, in reversing a sentence that was unreasonable, provided the following example:

"The irrationality in Section 2G2.2 is easily illustrated by two examples. Had Dorvee actually engaged in sexual conduct with a minor, his applicable Guidelines range could have been considerably lower.

An adult who intentionally seeks out and contacts a twelve year-old on the internet, convinces the child to meet and to cross state lines for the meeting, and then engages in repeated sex with the child, would qualify for a total offense level of 34, resulting in a Guidelines range of 151 to 188 months in prison for an offender with a criminal history category of I.

Dorvee, who never had any contact with an actual minor, was sentenced by the district court to 233 months of incarceration. What is highly ironic is that the district court justified its 233-month sentence based on its fear that Dorvee would sexually assault a child in the future."

In addition to the absurd results pointed out by the Second Circuit, they comment on the fact that the enhanced sentences are the result of congressional legislation: "The Section 2G2.2 sentencing enhancements cobbled together through this process routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases."

This means first time offenders with no criminal history receive essentially the same sentence as someone with criminal history and earning money selling the pornography. This is hardly justice and the lack of discretion for the sentencing judge fundamentally undercuts their purpose in the courtroom.

The Court of Appeals points out that "By concentrating all offenders at or near the statutory maximum, Section 2G2.2 eviscerates the fundamental statutory requirement in Section 3553(a) that district courts consider "the nature and circumstances of the offense and the history and characteristics of the defendant" and violates the principle, reinforced in Gall, that courts must guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct."

Judge Weinstein and other federal judges preside over their courtroom with a mandate to see that justice is done. Federal judges tend to be very bright, hard-working men and women. They have to be; the average federal district court judge handled 537 filings in 2009.

Guidelines Take Away Judge's Discretion

A district court judge is given great discretion by higher courts in the performance of their duties, because they are in the courtroom, listening to the defendants, witnesses, experts, and the attorneys. This direct experience translates, especially for judges of Weinstein's years, in an ability to quickly "read" parties, understand facts and make determinations on what is appropriate in a given circumstance.

What statutory schemes like the mandatory minimums for child pornography damage, in addition to those sentenced, is the discretion of the trial judge. As with the "War on Drugs," judges bridle at the revocation of their ability to exercise their fundamental authority within the courtroom.

Judge Weinstein still has to submit to the limits in many cases. In one case where he was forced to impose the mandatory minimum five-year sentence, he found himself apologizing to the defendant: "I'm sorry, there is nothing I can do in this case."

Article provided by The Law Offices of David S. Shrager
Visit us at www.shragerlawfirm.com