While reading a Courthouse News Report earlier today I was again struck by the inflexible approach that federal judges take towards child pornography distribution cases. A federal judge in New York sentenced a teenager to thirty months in prison after he pleaded guilty to distributing child pornography. No doubt this was an excellent deal. There was a large quantity of images on the defendant’s computer accessed through a file-sharing program. This fact alone satisfied the element of distribution. Yet this judge, Judge Jack Weinstein correctly recognized that this form of distribution is at best passive. The government appealed the sentence. The Second Circuit of Appeals criticized the judge’s sentence, ruled that he misinterpreted the law and remanded the case for further sentencing. The district court then, without any choice, imposed a sixty-month sentence, the minimum mandatory under the law.
What I find most appalling about the appellate court decision is its failure to respect the detailed, well-researched efforts of the lower court judge. Consistent with his practice Weinstein visited a federal prison at Fort Devens, Massachusetts that was established to treat sex offenders. He believed that treatment at Devens for this defendant would be rehabilitative and would enable the accused to perhaps reenter society at a later date in a productive manner. Weinstein has made frequent field trips like this in the past so that he can better understand the implication of his rulings and sentences. Imagine that? A federal judge who cares enough to take off his robe and step down from his pulpit to ensure that his decisions are just and productive not simply for the defendant but for society as a whole. Weinstein’s sentencing decision was issued with great thought. The supporting memorandum was over four hundred pages in length. It contemplated several days of expert mental health testimony. It considered the defendant’s childhood, one that is riddled with scarring incidents of abuse and neglect. The sentence placed form over substance, treatment over punishment.
So what happened? The Court of Appeals decided that notwithstanding Justice Weinstein’s findings it knew better. It told Weinstein that he must apply the enhancements set out in the sentencing guidelines. Let’s take a look at just one of these enhancements. Using a computer to access child pornography enhances the sentence. What? How else would this be accessed nowadays?
This enhancement is best characterized as idiocy. It is 2013 folks. The Internet is used for everything. It is virtually the only way people are accessing child porn. So Justice Weinstein used common sense and justly decided not to enhance the sentence using that criteria. Unfortunately he must have forgotten that in federal court the culture is one of hostility. Prosecutors and judges alike want to “one-up” each other by showing how smart they through sentencing hearings they shout out “look, I found another way to increase the sentence”.