Tuesday, March 3, 2015
Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor, by Eric Heisig
Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor
Ryan Collins, 32, was sentenced to five years in prison on child porn charges Tuesday. (File photo)
By The Plain Dealer Follow on Twitter on February 10, 2015 at 5:36 PM, updated
CLEVELAND, Ohio -- A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.
A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.
Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.
Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.
But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge.
The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.
In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."
Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer.
Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.
Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare.
Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."
Gwin's sentence is just one example of a larger discussion regarding mandatory minimum sentences and the way federal sentences are calculated. And while many of those discussions are aimed at reducing the percentage of inmates in prison on low level drug offenses, some stakeholders are looking at sentences for child pornography convictions as problematic as well.
In a sentencing memorandum, Collins' attorney, Bradley Iams of Canton, pointed to a dissent filed by federal appeals Senior Judge Gilbert Merritt Jr. in U.S. v. Walters, a case similar to that of his client.
In that case, Michael Walters, a Canton resident, pleaded guilty to possession and distribution of child pornography. U.S. District Judge Christopher Boyko, of Cleveland, sentenced Walters to 151 months in prison, and the 6th U.S. Circuit Court of Appeals upheld that sentence in January.
But Merritt, in his dissent, wrote that the sentence represents "a vast over-criminalization of the wrong involved" and that experts and officials that study the proliferation of child pornography on the Internet feel that the sentencing guidelines for those crimes should be "greatly reduced."
Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing.
"If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.
Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $1,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded.
Once he is released, he will have to register as a sex offender and will be on supervised release for five years.
Despite the lower sentence, Collins is expected to appeal his convictions.
What John Grisham Got Right About Child Pornographyby Jacob Sullum
There is clearly something wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children
Last week John Grisham, the best-selling author of legal thrillers, triggered a storm of online criticism by arguing in an interview with the Telegraph that criminal penalties for possessing child pornography are unreasonably harsh. Grisham, who has since apologized, spoke rather loosely, overstating the extent to which honest mistakes account for child-porn convictions and the extent to which those convictions expand the prison population.
But he was right on two important points: People who download child pornography are not necessarily child molesters, and whatever harm they cause by looking at forbidden pictures does not justify the penalties they often receive.
Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years—the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that web browsers automatically make copies of visited sites. In practice, since the Internet nowadays is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking.
The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on very common factors, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images) and exchanging photos for something of value, including other photos. In a 2009 analysis, federal public defender Troy Stabenow showed that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years.
Nine out of 10 federal child-porn prosecutions involve “nonproduction offenses”: downloading or passing along images of sexual abuse as opposed to perpetrating or recording it. As a result of congressional edicts, the average sentence in such cases rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission (USSC). The penalties have become so severe, the commission noted, that judges frequently find ways to dodge them, resulting in wildly inconsistent sentences for people guilty of essentially the same conduct. In a 2010 survey, 71% of federal judges said mandatory minimums for receiving child pornography are too long.
State sentences can be even harsher. Dissenting from a 2006 decision in which the Arizona Supreme Court upheld a 200-year sentence for a former high school teacher caught with child pornography, Vice Chief Justice Rebecca Berch noted that the penalties for such offenses were more severe than the penalties for rape, second-degree murder and sexual assault of a child younger than 12.
These draconian sentences seem to be driven largely by the assumption that people who look at child pornography are all undiscovered or would-be child molesters. But that is not true.
The sentencing commission found, based on criminal records and additional information in presentencing reports, that 1 in 3 federal defendants convicted of nonproduction offenses in the previous decade had known histories of “criminal sexually dangerous behavior” (including prior child-pornography offenses). Tracking 610 defendants sentenced in fiscal years 1999 and 2000 for 8.5 years after they were released, the USSC found that 7% were arrested for a new sexual offense.
Even allowing for the fact that many cases of sexual abuse go unreported (as indicated by victim surveys), it seems clear that some consumers of child pornography never abuse children. “There does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending,” says Karl Hanson, a senior research officer at Public Safety Canada who has co-authored several recidivism studies.
Another argument for sending people who look at child pornography to prison, emphasized by the Supreme Court in its 1990 decision upholding criminal penalties for mere possession, is that consumers create a demand that encourages production. Yet any given consumer’s contribution to that demand is likely insignificant, and this argument carries much less weight now that people typically obtain child pornography online for free.
Defenders of harsh penalties for looking at child pornography also argue that viewing such images imposes extra suffering on victims of sexual abuse, who must live with the knowledge that strangers around the world can see evidence of the horrifying crimes committed against them. But again, any single defendant’s contribution to that suffering is apt to be very small.
Tellingly, people who possess “sexually obscene images of children,” such as “a drawing, cartoon, sculpture, or painting”—production of which need not entail abuse of any actual children—face the same heavy penalties under federal law as people caught with actual child pornography. That provision, like the reaction to Grisham’s comments, suggests these policies are driven by outrage and disgust rather than reason. There is clearly something wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children.
Jacob Sullum is a senior editor at Reason magazine and a syndicated columnist.
Sex Offender Mythbusters Conference Presentation 2013
Obscene feminists, Why women are leading the battle against censorship.By Annalee Newitz
Obscene feminists, Why women are leading the battle against censorship. By Annalee Newitz
Obscene feminists, Why women are leading the battle against censorship. By Annalee Newitz