Althouse: Is it unconstitutional to impose a 5-year sentence on a 19-year-old for distributing child pornography?

May 22, 2011

Is it unconstitutional to impose a 5-year sentence on a 19-year-old for distributing child pornography?

Judge Weinstein's 400-page opinion says it's too long.

28 comments:

Fred4Pres said...: Why is five years too long? This 19 year old is a monster. I am sorry he is so screwed up, but some people would be better off dead.

Letting this individual out will virtually guarantee more victims.; 5/22/11, 9:52 AM
SteveR said...: I suppose there's no irony in a 400 page opinion that a sentence is too long; 5/22/11, 10:01 AM
The Crack Emcee said...: Too long?

Sounds just about right to me,...; 5/22/11, 10:06 AM
AllenS said...: Pornography is one thing, child pornography is something else. Something close to rape, or if you want, rape-rape.; 5/22/11, 10:10 AM
KCFleming said...: Lady Gaga said the same thing in just 7 minutes and 20 seconds:

"I'm beautiful in my way
'Cause God makes no mistakes
I'm on the right track baby
I was born this way
Don't hide yourself in regret
Just love yourself and you're set
I'm on the right track baby
I was born this way"

All I do is therefore justified.; 5/22/11, 10:16 AM
TMink said...: The judge looks like an untreated sexual abuse victim to me. He probably thinks he is gay because his 30 year old cousin "showed him about his sexuality" when he was 9.

The 19 year old has likely perped over two dozen kids by now. The best research indicates that actual pedophiles like him perp 124 kids in their lives. I say keep him locked up to save the other 100 he has not yet raped.

Trey; 5/22/11, 10:20 AM
edutcher said...: What Steve said.

"It's unconstitutional" is also Green.

Think of all the trees that could have been spared.

Also what Crack said, although double is probably better.; 5/22/11, 10:20 AM
Anonymous said...: "His first sexual experience was with his half-sister when he was 16 and she was 9."

I needed to go no further. It's not too long. This guy was more than just a purveyor.; 5/22/11, 10:29 AM
Freeman Hunt said...: What is this Peter Pan world in which some judges seem to live?

And four hundred pages? That is ridiculous. If you need that many pages to explain a sentence, you are not thinking clearly.; 5/22/11, 10:29 AM
Freeman Hunt said...: I'd have given him the 210 months. Based on his history, I think he's dangerous, and it's better to keep him out of society. If only judges' compassion for perps extended to regular people.; 5/22/11, 10:31 AM
mccullough said...: He deserves a longer sentence, but why is this a federal crime? The commerce clause should not be interpreted so broadly as to allow Congress to legislate in this area. Let the state of New York prosecute and incarcerate him.; 5/22/11, 10:33 AM
Bender said...: The judge virtually guarantees that he will be reversed by not only rejecting all the various enhancements to the sentencing guidelines, but then ruling that the statutory mandatory minimum of five years violates the Eighth Amendment.

Had he rejected all the enhancements and given a five-year sentence, it probably would be upheld as within his discretion, but there is no way that the Eighth Amendment ruling will stand, so the entire sentence will be thrown out, a new judge appointed on remand, and a new sentence imposed near the high-end of the guidelines.; 5/22/11, 10:43 AM
DADvocate said...: ...a minimum of sixty-eight months in prison would go far towards destroying the defendant as a potential useful member of society.”

As is typical of such people, more concern for the offender than the victims. This guy had collected over a thousand child pornography pictures. The judge is a bad joke.

The purpose of sending people to prison is punishment first and rehabilitation if possible.; 5/22/11, 10:57 AM
Michael P said...: I would (snarkily) suggest that it is unconstitutional to impose a 400-page opinion on the appeals court when one is so clearly going to be overruled.; 5/22/11, 11:10 AM
Almost Ali said...: I'm more concerned about a SWAT team conducting a home invasion and murdering a 7-year-old girl. And another brave cop gang pumping 60 rounds into a young father. And no-knocking their way through life till all that raging adrenalin finally drains from their itchy, wife-beating, trigger fingers as they reach old age.; 5/22/11, 11:11 AM
Toshiro said...: This comment has been removed by the author.; 5/22/11, 11:18 AM
RuyDiaz said...: From the article:

Weinstein manages to bring the guidelines sentencing range to 68–73 months. But that's too high, Weinstein concludes, because "[e]ven a minimum of sixty-eight months in prison would go far towards destroying the defendant as a potential useful member of society."

You'd think that raping your nine year old sister and distributing child pornography kind-of, sort-of, destroys you as a potential useful member of society. You'd think.; 5/22/11, 11:22 AM
Shanna said...: If this were one of those "19 year old took pictures of his 17 year old gf" stories, I might agree that 5 years is too long. But it isn't. Especially if he really did something was messing around with his 9 year old sister at 16.; 5/22/11, 12:17 PM
AllenS said...: If he's let out early, he needs to leave his nut sack behind.

WV: torts; 5/22/11, 12:44 PM
paul a'barge said...: life in prison would have been appropriate.; 5/22/11, 1:17 PM
Lucien said...: Every now and then one sees an appellate opinion that explains that the brief of one of the parties was too long, poorly written, ignores controlling case law, and selectively cites the facts before the court.

This sounds like a case where the opinion of the trial judge should be given the same treatment. (And the names of the judge's clerks should be published so that potential future employers can find the reference on Google.); 5/22/11, 3:48 PM
Robin said...: To Weinstein: tl;dr

What a fatuous idiot of a judge.; 5/22/11, 7:23 PM
Revenant said...: Five years seems reasonable.; 5/22/11, 10:12 PM
Beldar said...: Sometimes a district judge writes a long, long opinion when he's hoping for the circuit court to "affirm on the basis of the district court opinion." It's like getting to be an ersatz appellate judge.

That won't happen with this.; 5/22/11, 11:54 PM
Beldar said...: Hah! Hadn't read Prof. Kerr's post at Volokh before posting that comment, but the headline makes clear he had the same reaction I did: "Second Circuit Clerks, Get Ready: Judge Weinstein’s New Opus Concluding Mandatory Minimum For Child Porn Distribution is Unconstitutional (At Least for Younger Defendants)."

I suppose the armies of Second Circuit clerks could just be assigned to cite-check and verify all of Judge Weinstein's assertions and citations, so that the Second Circuit judges on the panel could be confident in adopting Judge Weinstein's work as their own.

I think more likely, in due course when this gets to them after briefing and such, the panel judges will assign their clerks with an admonition not to assume that a single statement or quotation or citation has any presumption of validity. District judges do get reputations among circuit judges and their clerks.; 5/23/11, 12:00 AM
Richard Dolan said...: Judge Weinstein turns 90 this year; he is, hands down, one of the greatest district court judges of all times even if his brand of justice is currently out of favor.

He's been reversed many times before in these kiddie porn cases, all of which are victimless in the usual sense of that term. Most of the kiddie porn comes from Russia or eastern Europe, and is downloaded from websites over which the perps have no control. The judge (among many others) has often lamented that the Govt does not target those who make the kiddie porn (a group having readily identifiable victims in all the usual senses). But they operate in countries where the can buy protection. The theory that downloaders of this stuff create victims is essentially economic -- without an audience, it would not exist. That's a tricky argument, since the internet audience for anything is world-wide. Like most attempts a prohibition, the kiddie porn war hasn't had much to show for itself, other than these kinds of prosecutions.

With respect to the 19 year old defendant here, the charge is distribution, not rape or anything else. If the perp committed such acts -- for example, sex with a minor within the last three years or so -- that is the sort of crime for which he could be prosecuted, and it won't be barred by any SOL I'm familiar with. Distribution of images already readily available on the internet (even if the defendant repackaged them in various ways) is quite different as crimes go, and not one that the judge thought merits anything like a 15 to 20 year sentence.

The judge's last effort in this regard took the form of an order granting a new trial to a 60+ year old Italian immigrant who ran a few restaurants. He maintained an 'office' above his garage, and downloaded and watched kiddie porn from that venue. After the jury convicted him, Judge Weinstein said he had been denied a fair trial by the judge's failure to inform the jury of the mandatory minimum sentence that would apply in the event of a conviction. In reversing him on that one, the Second Circuit held that nothing in the constitution requires that juries be told what the sentence may be in the event of a conviction, and a failure to tell them didn't violate any right of the defendant. That case went up and down the appellate ladder a few times before the judge eventually imposed the statutory minimum sentence.

Weinstein knows perfectly well that his efforts in this regard are not popular, and are almost certain to be reversed. He feels impelled to explore every possible ground for lessening the grotesque severity of the minimum sentencing requirements here, and more generally the sentencing guidelines (which are now, at least in theory, no longer mandatory). Like Brandeis and Holmes, he writes these opinions (as those justices did their famous dissents) to suggest a way to use the constitutional guarantees to achieve substantial justice, if in the future others choose to follow his lead.

Anyone who deals with the criminal justice system on a regular basis will recognize (and appreciate) how different is this judge's approach.; 5/23/11, 12:48 PM
Beldar said...: @ Richard Dolan: Great Wall-o'-Text Defense for a wall-o'-text opinion!

(I confess hypocrisy in that snarky comment, for brevity and terseness are only infrequent friends of mine.); 5/23/11, 6:44 PM
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