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Wednesday, November 11, 2015

Declaration of David Finkelhor 11-07-2012

Declaration of David Finkelhor 11-07-2012

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Dow: Ease Up On Child-Pornography Sentences BY Marcia Chambers

Dow: Ease Up On Child-Pornography Sentences BY Marcia Chambers                       
A person can view more than 50 photos on the Internet in a matter of minutes—and if those photos involve child pornography, that can lead to at least five years in jail. Whether or not a judge sees a reason to be more lenient.

That’s an example of how Connecticut has a rigid system for dealing with child pornography, much to the dismay of Willie Dow.

Dow (pictured), whose law firm is based in New Haven, has represented many high-profile clients, including former Gov. John G. Rowland, numerous attorneys, judges, physicians in disciplinary proceedings, and corporations accused of crimes. He also represents defendants whose names do not appear on the front page. These are the men—and they are usually men—who find themselves in the jaws of the legal system, charged with crimes that are tied to mandatory-minimum sentences and are designed to destroy the person, his family, his job, and his reputation.

Some would say rightly so. Others, like Dow, say change is needed in the state’s handling of these cases, especially in the era of the internet. Change should come at both the state and federal levels, he said.

In an interview on WNHH radio’s “Legal Eagle” program, Dow called child pornography cases “essentially the third rail. Nobody wants to touch it. That includes prosecutors, defense lawyers, judges, and legislators.” The issue is so charged that politicians fear raising the topic.

Dow described the law: “In the present law in the state of Connecticut, if you have between three and 20 photographs that qualify as child pornography—that means a mandatory-minimum sentence of one year in state prison. If you have between 20 and 50, there is a mandatory minimum of two years, no matter how long you have done it, no matter what your background, no matter what emotional problems you may be suffering from, no matter what your record. If you have more than 50 photographs there is a mandatory minimum of five years.”

And, he noted, one can view more than 50 photos in a matter of minutes. 

Unlike in the federal system, “Connecticut does not have prison camps. They are all at one level or another, prisons. They are not an easy facility for anyone to get help. And what happens is that the mandatory-minimum sentence allows [prosecutors and judges] to avoid making individual decisions. There is an assumption underlying the statute that anybody who has ever done this, that is, done child pornography, is about two minutes away from jumping on a little child as they leave their parochial school in Madison, Branford, or New Haven. Many of the people caught up in this are just punished way beyond what is appropriate,” Dow said.

Dow described the typical defendant as “a man between ages 35 and 55, often single, mostly Caucasian, limited education, have some type of emotional problem at some level and who at 3 a.m. drifts down into their basement and gets on the computer, and starts looking at photographs they shouldn’t look at.”

How do we get from looking at photographs on a computer in one’s basement, photographs we should not look at, to an arrest?

Dow described a system in which people who monitor computer activity, including the providers themselves, watch people’s computer patterns and sites they visit.

“They go to a particular site, and then they notice what people are looking at and then report it to authorities. If federal and state prosecutors wanted to do nothing else but prosecute child pornography they could do that 100 percent of their time and have a full docket. They have been somewhat selective, fortunately,” he said. 

The charges are possession or distribution of child pornography. “Under the state statutes, interestingly, for the crime of so-called production of child porn, that is, a film of a child doing something awful, there is no mandatory-minimum, which is absurd,” Dow argued.

When he meets a client in this situation, he said, he describes off the bat “how dire their circumstances are. One of the things you try to do is get them some help. So if you can find a prosecutor in the broad expanse of the state of Connecticut who will listen, then perhaps they might consider altering the charges to a non-mandatory sentence and to allow the judge to make a decision on what would be the appropriate sentence for this particular individual. It is very, very hard for prosecutors. It is very difficult. In fairness to the prosecutors, nobody wants to think about these cases. They are awful.”

Dow suggested on the show that the state legislature remove mandatory-minimum sentences.

“We have confidence in our judges. They are going to impose the appropriate sentence in the appropriate circumstances. Let the system play out so that individuals can get an individual decision with respect to their cases,” Dow argued.

“The present statute just can’t cover everybody: on the one hand they handcuff everybody and on the other it allows everyone to hide behind the mandatory minimum. We don’t want to deal with this problem. There is sewage in the backyard. Let’s not go there.”

Typically in criminal cases, a prosecutor or judge will consider if a defendant has had prior arrests or convictions. Judges can’t do that with child pornography offenses.

“It is of no significance. Only if a prosecutor is willing to stop and examine the circumstances. Does the person accused have a record? How old is he? How long has he been doing this? What are the types of photos he looks at? Does he trade them or just look at them? What is his emotional condition? Is there a need for treatment? Is he getting treatment? Did he stop before they accused him? All different things you would ordinarily point out in other cases are not in play in child pornography cases,” Dow said.

Dow said this problem has increased over the past decade and extends beyond prison when the offender is placed on a sex offender registry once released. The state’s sentencing commission is now examining a variety of issues connected with the registry. (Thomas Ullmann, the New Haven Chief Public Defender discussed this topic on a previous episode of the “Legal Eagle.” Click here to read the story.)

Dow also spoke about white collar crime issues and what it is like to represent young people. Click on the above sound file to hear the interview in its entirety.

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posted by: Bill Saunders on October 29, 2015 4:53pm

I just finished a novel by Russell Banks called ‘Memory of Lost Skin’, which is about the plight of homeless sex offenders, post jail.

One of the interesting notions, is that, in older days, this phenomena was pretty much something that happened and dealt with within families. There were no real laws on the books about it.

Now, with the advent of this ‘instant technology’, it has become a socialized problem, with harsh penalties that will follow people around for a lifetime.

The solution in the book, is to actually treat these ‘criminals’ like humans, not pariahs.

posted by: Bill Saunders on November 1, 2015 6:17pm

OK, Walt…..

I will cite one real example about judicial discretion vs. zero tolerance, since my former little diatribe was removed….

There is a case in North Carolina where an 18 year-old man was convicted of statutory rape with his 17 year old girlfriend. The parents had a problem with the lad, prosecuted, and got conviction. He did time, probation, etc..

15 years later, he is still having a relationship with the woman, she is his wife!

They have two kids.

He is on the sex offender registry, and will be treated as a ‘an offender’ for life.

Now I want you to take that example, and think about it in terms of this new world we are living in….. where kids are sending each other ‘naked pictures’ of themselves. Now the lines started getting blurred a little….

Believe me, I am no child pornography apologist here,—it is a real, disgusting, and difficult problem that elicits understandable reaction.

But The lines between technology, morality are being quickly intertwined these days—zero tolerance laws can be blind to some of that nuance.

posted by: on November 2, 2015 9:51am

, your original obnoxious comment was justly removed by the Editors, as was my not any nicer response,

One of my former neighbors uses the same excuse as the North Carolina kid you cited re his inclusion on the sex offenders’ list and may have also used similar excuses re his convictions for major vandalism and theft .

We were far from unhappy when he left this area.

Your first post reads as a defense of all sex offenders, especially child porn ographers. not just those unjustly accused

Mine was meant to apply only to the guilty. It is up to the courts to determine which is which.

A guilty sex offender is a pariah.

Think I agree with your revised statement

posted by: Bill Saunders on November 2, 2015 12:57pm


Thanks for engaging in the conversation. This is a difficult subject exacerbated by technology, socialization, etc…..who knows where it is really going right now….and I’m not even bringing the Catholic Church into this….

It is always the people at the edge of the ‘technical law’ that get mis-served by zero-tolerance policies like mandatory minimum sentences.

The only mandatory minimum sentence that should apply here is “I see.”

Federal judge dismisses porn charge, criticizes prosecutors By Elaine Silvestrini

Federal judge dismisses porn charge, criticizes prosecutors By Elaine Silvestrini

TAMPA — Strongly criticizing the actions of federal prosecutors, a federal judge has dismissed a case against a Bradenton woman who had been accused of making pornographic photographs of a 2-year-old girl she was babysitting.

Renee Gregg was arrested in June when authorities alleged she had texted a pornographic photo of the child to someone in New York, who was arrested in February 2014 on child pornography charges.

Investigators said at the time that one of the photographs depicted Gregg performing a sex act on the toddler. In her order granting a prosecution motion to dismiss the indictment, U.S. District Judge Elizabeth Kovachevich wrote that the U.S. Attorney’s Office proceeded with Gregg’s prosecution even though prosecutors became aware by Dec. 3 of evidence that she had an alibi — she was at work and the child was in day care when the photograph was taken.

The prosecution maintains in court pleadings that it is still investigating Gregg, and that officials are reviewing “extensive electronic evidence connected to the person to whom the defendant confessed to sending naked pictures of the victim, and with whom she discussed sexual activity with children.”

Still, the judge wrote in extraordinarily disapproving terms about the prosecution. In her 32 years as a federal judge, Kovachevich wrote, she’s presided over thousands of cases, and the procedural history and the “prosecutorial indiscretions” in the Gregg case “strike an exceptional chord for this United States Attorney’s Office.”

Assistant U.S. Attorney Jennifer Peresie wrote in a court filing that the prosecution had not acted improperly, saying that “every piece of exculpatory evidence” in the case was obtained and disclosed by the government to the defense.

And U.S. Attorney Lee Bentley vehemently defended the actions of his office.

Bentley said Gregg, “for reasons unknown to this office … falsely confessed to producing and transporting child pornography.”

With the confession and some supporting evidence, federal prosecutors properly presented the case to a grand jury, which handed up an indictment, Bentley added.

After that, Bentley said, the same prosecutors “engaged in Herculean efforts to make sure that the case was properly charged, determined that it was not, and moved to dismiss the indictment. Unfortunately, in retrospect, it is clear that our office did not keep the court fully apprised of the ongoing efforts that the (assistant U.S. attorneys) were making to determine the truth. However, I am proud that the (prosecutors) were more concerned with seeking justice than with moving quickly to trial and securing what would have been a wrongful conviction.”

The judge says in her order that the defense “adamantly disputes” that Gregg confessed.

The judge’s unusual, 10-page order encompasses a treatise on the “awesome and paramount power” of prosecutors and their responsibility to exercise care when employing that power, particularly in a jurisdiction as vast as the 350-mile-long Middle District of Florida. It’s a responsibility, the judge concludes, that prosecutors failed to meet in the Gregg case.

Kovachevich wrote that prosecutors “wield extraordinary authority to prosecute an individual for a crime” and are responsible to exhibit “the highest assiduity, acumen and awareness” when bringing a case, which she emphasized “unquestionably, permanently, adversely affects an individual’s constitutional rights, reputation and standing in his or her community regardless of guilt.” Last year, she noted, the local U.S. Attorney’s office brought 1,245 criminal cases.

The judge detailed in her order the various actions taken by prosecutors in Gregg’s case, including opposing her release from jail while the case was pending and referring to her in court as a “sexual predator,” a “child abuser” and a “quintessential danger to the community.”

Gregg was ultimately released, over the objections of the prosecution, under conditions Kovachevich described as stringent. Among the requirements were electronic monitoring and that Gregg not be allowed to possess computers or cellphones or have access to the Internet. Gregg’s parents and fiance had to risk financial devastation by posting homes and bank accounts as security for her $325,000 bail, Kovachevich wrote.

Gregg and her family had to sign a document acknowledging the conditions of release and “the dire consequences should the defendant fail to comply with any single condition or minutiae contained therein,” the judge wrote.

Although investigators initially said the photo in question was sent via text message, a police report from New York said it had been emailed. The prosecution said that was a mistake, but later said the picture had been emailed at a time when Gregg was at work and the child was in daycare.

In January, the prosecution filed a superseding indictment, which expanded the time frame in which Gregg was accused of producing the photograph.

After rebuking the prosecution for the timing of the superseding indictment close to the anticipated trial and “the lack of candor” about disclosures of thousands of pages of evidence to the defense, the judge on Feb. 18 scheduled the trial for March 10, according to Kavochevich’s order. The following day, the prosecution filed a motion to dismiss the indictment without prejudice, meaning the case could be brought again if evidence supported it.

At a hearing, the prosecution “conceded it was ‘highly likely’ the defendant was not depicted in the photograph — an allegation the assigned assistant United States attorney previously asserted with unwavering conviction,” Kovachevich wrote.

Gregg’s attorney, Assistant Federal Public Defender Yvette Gray, urged Kovachevich to dismiss the case with prejudice, barring the prosecution from bringing the charges again, saying its efforts to continue its investigation “amount to a fishing expedition.”

While saying she is seriously concerned about the history of the case, the judge granted the prosecution’s motion. As requested by prosecutors, the judge dismissed with prejudice the charge involving the specific photograph, but dismissed another, more general charge without prejudice, allowing the prosecution the ability to later charge Gregg again.

The judge added that if the U.S. Attorney’s Office decides to prosecute Gregg again, she “strongly encourages the government to exercise the utmost assiduity, acumen and awareness that previously it seriously lacked.”

(813) 259-7837

Twitter: @ElaineTBO

Introduction to Defending Computer Based Child Pornography Cases, by Colin Fieman, Assistant Federal Public Defender, Western District of Washington

Introduction to Defending Computer Based Child Pornography Cases, by Colin Fieman, Assistant Federal Public Defender, Western District of Washington

When Juries Help Judge Giving jurors a say in sentencing. By ELI HAGER

When Juries Help Judge....... Giving jurors a say in sentencing.

Prosecutors in Cleveland filed an appeal on Thursday challenging the sentence of Ryan Collins, a Dalton, Ohio man convicted of downloading over 15,000 files of child pornography. Federal prosecutors rarely appeal sentences, because federal sentencing guidelines – especially in cases involving child pornography or drug trafficking – are already very punitive.

But this was an exceptional case. Immediately after Collins’s trial ended, U.S. District Judge James S. Gwin surveyed the jury to see what sentence they believed was appropriate for the crime, and he ultimately decided on a sentence of only five years when prosecutors had advocated for the statutory maximum of 20. In the appeal, filed with the 6th U.S. Court of Appeals in Cincinnati, the U.S. Attorney’s office will argue that such a survey was impermissible.

When government agents used cutting-edge software to hack into the hard drive of Ryan Collins’s computer, they found more than 1,500 sexually-explicit images of children, some of whom were younger than twelve. The agents also discovered file-sharing programs, indicating that Collins may have been distributing the pornography online.

Collins was unrepentant, even after a jury in Cleveland, Ohio convicted him of possessing, receiving, and distributing child pornography. The prosecutors sought the statutory maximum sentence of 20 years’ imprisonment, and the federal sentencing guidelines would have allowed a term of as long as 27 years.

But the federal district judge in the case, James S. Gwin, thought that such a sentence might be out of touch with the community’s sense of justice, and so he did something that judges almost never do. Before dismissing the jury, he asked each member what they thought would be an appropriate sentence for someone who had downloaded child pornography. According to Gwin, the average of the sentences they recommended was only 14 months.

Then the judge did something even more unusual. Taking the jury’s input as a marker of what the community considered “just punishment,” he sentenced Collins to the statutory minimum of five years in federal prison.

Gwin’s approach represents a significant departure of both the legal principle and practice. With the exception of capital cases (in which jurors in both the federal and state courts must recommend the death penalty), sentencing at the federal level is handled exclusively by judges, usually a few months after a conviction.
In a handful of mostly southern states, in the few criminal cases that go to jury trial, the jury stays on afterward to recommend a sentence. However, the judges in those cases still have the final say.

"I have never heard of a trial judge polling jurors on a sentence, either in state or federal court," said John E. Jones, a federal district judge in Pennsylvania. "While I commend [Judge Gwin] for his creativity, I would not utilize this method of seeking assistance.”
Another U.S district court judge, Mark W. Bennett of Iowa, added, "Only about 20% of us even talk to the jury after the guilt stage of trial.”

There are several legal reasons why what Judge Gwin did is so uncommon. The primary one is that, by design, the jury is not supposed to think about punishment.
“The jury is only supposed to consider whether or not the defendant did the crime,” said Nancy King, a professor at Vanderbilt University and an expert on jury sentencing. “In fact, during trial, a common jury instruction is to not even think about sentencing, because thinking about punishment tends to create empathy for the defendant.”

“If the jurors knew they would have to decide on a sentence, they would be thinking about punishment.”
A second reason is that jurors are not apprised of much or even most of the information that goes into a sentencing calculation.
“Because the jurors are only supposed to consider whether or not the defendant is guilty of the crime itself, and nothing else,” explained Paul G. Cassell, formerly a U.S. District Judge in Utah, “they are kicked out of the courtroom every time other types of information come up, such as the defendant’s criminal history, employment, drug use, etc.”

“But these are exactly the types of information we use during sentencing.”

The third reason, finally, is that the judge, an experienced jurist, is considered better able to manage all the various calculations that are made during sentencing.

Said John L. Kane, U.S. District Judge for Colorado, “I can’t think of any responsibility a judge has greater than sentencing. It is a complex matter requiring a depth of experience and knowledge that no jury could have… This may sound somewhat elitist or snobbish, but I don’t think sentencing can be done by a straw poll.”

The list of factors involved in a sentencing calculation is long. Often, in a given federal case, there are “mandatory minimum” sentencing guidelines, set forth by Congress. Then there are additional guidelines – which often contradict the mandatory minimum – recommended by the U.S. Sentencing Commission, an independent agency of the judicial branch that provides judges with criteria for sentencing.

And most federal judges depart from the guidelines only cautiously. According to Sentencing Commission data, among more than 11,000 federal child pornography defendants who were sentenced under the same guidelines as Ryan Collins since 2006, he was one of only five who went to trial and received a minimum sentence when the guidelines called for the maximum.

Judges also consider the aggravating and mitigating factors of each defendant’s case in their sentencing. If the defendant has an extensive criminal history, he will often get more prison time; if he has expressed remorse, he may get less.

But Judge Gwin and a handful of other judges say jurors are up to the task, and should not be on the sideline during sentencing.
In 2010, he authored a study about the practice of surveying the jury. In it, he argued that jurors are a cross-section of the community, and that asking them about sentencing is a way to ascertain what the community believes is “just punishment.”

Especially in federal child pornography cases and drug trafficking cases, he wrote, querying the jury helps to demonstrate that War on Crime-era sentencing guidelines are draconian when measured against the normative beliefs of the community, represented by the jury.
Judge Bennett agrees. "Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence," he says, "every time – even here, in one of the most conservative parts of Iowa, where we haven't had a 'not guilty' verdict in seven or eight years – they would recommend a sentence way below the guidelines sentence."

"That goes to show," he says, "that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment – that's baloney."

Judge Cassell also surveyed a jury about sentencing, once, for a similar reason.

It was 2004, in the now-famous case of Weldon Angelos, a small-time marijuana dealer who – because he was in possession of a gun, which triggered a harsh mandatory minimum – was facing a sentence of 55 years in federal prison. Judge Cassell wanted to ask jurors whether they believed, as he did, that such a sentence would be too extreme.

They did agree, and, though Judge Cassell was obligated to hand down the mandatory minimum sentence, he used the jurors' feedback to make a statement about how out-of-whack the sentencing guidelines had become.

Douglas A. Berman, a professor at Ohio State University and an expert on criminal sentencing, says that asking the jury for input during sentencing may be rare – but it has a precedent.
"In capital cases,” he says, “getting the jury's sanction for a death sentence is a crucial part of making that sentence legitimate, because the jury represents the society. I don't see why, in other criminal cases, the same logic shouldn't hold."

Berman, like Judge Gwin, does not recommend that jurors take over the sentencing process, but rather that they should have input in it.

"Sure,” he says, “the judge may have better knowledge of the case law and the statute and guidelines, as well as the defendant's criminal history, motive, etc. But the jury, as a cross-section of the community, can provide valuable input as to what the community feels is a proper punishment for the crime itself.”
"Why not consider both?"

Judge Battles Child Pornography Mandatory Minimum Sentence He Considers Unjust BY NICOLE FLATOW

Judge Battles Child Pornography Mandatory Minimum Sentence He Considers Unjust
With momentum building for sentencing reform and federal judges among the most avid supporters of rolling back harsh mandatory minimum sentences, one judge is standing up for lower sentences for a particularly controversial category of defendant — those guilty of child pornography offenses.

As with other offenses, lawmakers have ratcheted up the sentences for child pornography sentences — including for online possession. And some judges have insisted that, as reprehensible as the offense can be, long prison terms are not the answer.

In 2011, New York federal judge Jack B. Weinstein took a stand on this issue in a 401-page opinion with 55 pages of appendices in which he found that a five-year sentence for a teen who pleaded to one count of distributing child pornography was unconstitutional cruel and unusual punishment under the Eighth Amendment. He instead sentenced C.J. to 30 months in prison and five months of supervised release. In reaching this conclusion, Weinstein heard from 12 experts in child sexual abuse, online child pornography, and adolescent brain development. He also visited a facility that treats sex offenders.

He wrote in that decision: “This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.?”

He found that C.R. “never produced, sold or deliberately exchanged pornography.” C.R. did admit to downloading “a ton” of pornography and sharing those files via an automatic file-sharing computer program. “This widely available electronic system gave others access to his home computer,” Weinstein wrote.

This week, a federal appeals court unanimously overruled Weinstein, finding that the imposition of the mandatory minimum sentence did not even approach cruel and unusual punishment. They also noted that Weinstein should have considered C.J.’s admission that he engaged in sexual activities with his half-sister when he was between the ages of 15 and 18 and she was between the ages of eight and 11 — a significant factor outside the scope of C.J.’s plea deal.

The panel wrote, “As Congress, courts, and scholars all recognize, child pornography crimes at their core demand the sexual exploitation and abuse of children. Not only are children seriously harmed­—physically, emotionally, and mentally—in the process of producing such pornography, but that harm is then exacerbated by the circulation, often for years after the fact, of a graphic record of the child’s exploitation and abuse.”

Weinstein reacted Thursday with an 11-page response in which he again reiterated his opposition to the mandatory minimum sentencing scheme before agreeing to comply with the appeals court order to re-sentence C.J. Noting that there is a “large scale” of culpability for child pornography producers, with producers on the one end, to adolescent consumption on the other, Weinstein writes, “There is a growing consensus among those responsible for enforcing our criminal law: It is unacceptable in this good and great country to continue unnecessarily sacrificing the lives of so many of our young through excessive mandatory prison sentences.”

Weinstein’s policy arguments aside, he likely knew his finding that the sentence was cruel and unusual would be overruled. Even the death penalty remains an acceptable form of punishment in the United States. The battle nonetheless raises policy questions as lawmakers consider reform to mandatory minimum sentences.
An extensive U.S. Sentencing Commission study of child pornography sentences in 2012 found that current federal guidelines produce “overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and widespread inconsistent application.” And research suggests that a mix of punishment and treatment could better deter some future offenses. But one study that has since been subjected to immense scrutiny suggested there is a correlation between pornography consumption and molestation.

Defendants have received much harsher sentences than C.J. In 2011, a Florida judge doled out a life sentence for child pornography possession — counting each item as a separate possession count punishable by up to five years in prison.

But Weinstein is not the only judge to publicly decry child porn sentencing. Earlier this year, a federal judge in Columbus, Ohio, defied recommended sentencing guidelines for child pornography possession and sentenced a 70-year-old defendant to three years of home confinement rather than time in prison. The defendant had no criminal record, and Judge James L. Graham said time in prison could amount to life in prison for the ill man. The U.S. Sentencing Commission found a pattern of judges doling out lower sentences for child pornography over the last several years, even as the average sentence remains more than a decade.Y NICOLE FLATOW



Judges Find Federal Child Porn Sentences Are Much Longer Than Jurors Consider Just by Jacob Sullum ............................. In one case, the term sought by prosecutors was 17 times longer than the jury recommended.

Judges Find Federal Child Porn Sentences Are Much Longer Than Jurors Consider Just by Jacob Sullum
Judges Find Federal Child Porn Sentences Are Much Longer Than Jurors Consider Just by Jacob Sullum