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Friday, May 1, 2015

Texas High Court Rules Improper Photography Law Unconsitutional; Or, Why You Care a Creepy Dude Is Not Guilty: Travis Crabtree, Gray Reed & McGraw, P.C.

Texas High Court Rules Improper Photography Law Unconsitutional; Or, Why You Care a Creepy Dude Is Not Guilty: Travis Crabtree,  Gray Reed & McGraw, P.C.

Texas High Court Rules Improper Photography Law Unconsitutional; Or, Why You Care a Creepy Dude Is Not Guilty

The Texas Court of Criminal Appeals ruled in a 8-1 decision yesterday that the “Improper Photography and Visual Recording Act” is facially unconstitutional. The case involved a guy who allegedly took pictures of kids at a water park. You can read more here.

Before you say, you are not a creepy person taking pictures of random kids and therefore don’t agree or don’t care, if you believe photography is art protected by the First Amendment, you should care.

The Facts of the Case
The law provides, in relevant part:

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Ronald Thompson was charged with twenty-six counts. Each count of the indictment alleges that appellant, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.”

We can all agree — creepy.

The Ruling

The first issue the court wrestled with was whether photography was conduct (subject to regulations) or speech protected by the First Amendment like other forms of art. The court found that pictures, even bad ones, are expressive and therefore are subject to First Amendment scrutiny. The court continued, “the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes” so the act of taking picture is also subject to First Amendment scrutiny.

The state reasoned, however, that the law regulates intent and therefore, even if considered speech, it can be regulated just like incitements to riot, threats or scams. The court responded:

Sexual expression which is indecent but not obscene is protected by the First Amendment . . . Of course, the statute at issue here does not require that the photographs or visual recordings be obscene, be child pornography, or even be depictions of nudity, nor does the statute require the intent to produce photographs or visual recordings of that nature. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.

The court then found the law “penalizes only a subset of non-consensual image and video producing activity—that which is done with the intent to arouse or gratify sexual desire” meaning it was a content-based regulation. As I can hopefully teach my Media Law students (hint for the test), when there is a content-based law, it is subject to a strict scrutiny analysis which means a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest. A regulation is “narrowly drawn” if it uses the least restrictive means of achieving the government interest.

Like most other laws subject to a strict scrutiny test, this one failed, too. It was not narrowly drawn.

The Takeaway

Although well-intentioned, the law simply covered too much. This law would allow a police officer to ask every photographer taking pictures of people in the public what their intent was. If I was taking pictures of my kids at the park, the police could ask me why. If I am doing it to show how nice my city is, I am OK. If I am doing it because I am creepy, it is against the law.

As the court noted:

The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.

Having the police govern the intent of our photographs is not sustainable.

I am guessing our readers are not going to run out now and start taking creepy pictures because of this ruling. But, it is comforting to know photographs are protected speech, the taking of photographs is subject to First Amendment analysis and the government does not have the right to ask me why I am taking pictures of people in public places.

With that said, we may not be thrilled this about this guy. If he crosses the line, he could still get in trouble for child pornography, invasion of privacy, unauthorized use of likeness or other wrongs if he actually harmed any of the people he photographed or used them commercially.

Our Constitutional protections, however, often protect the people on the edges so the rest of us know we are secure. Although the police may not be able to ask his intentions, if this guy is taping kids my kids at the park, I still can.

BB&K Police Bulletin: Burden of Proof on Government in Request for Return of Property Not Considered Contraband: Tamara Bogosian, Jordan Ferguson

BB&K Police Bulletin: Burden of Proof on Government in Request for Return of Property Not Considered Contraband: Tamara Bogosian, Jordan Ferguson

Ninth Circuit Decides There Must Be “Legitimate Reason” for Retaining Property

Overview: The Ninth Circuit recently held that, once a criminal investigation or prosecution is completed, the government bears the burden of proof to demonstrate that there exists “legitimate reason” for retaining property seized from an individual — here, a computer that contained child pornography.

Training Points: When a motion for return of property is made before an indictment is filed, it is important to remember that the defendant must prove that the property’s seizure was illegal and that he or she is entitled to its return. However, this burden of proof shifts to the government agency when the property is no longer needed for evidentiary purposes because the trial is complete, the defendant has plead guilty or the government has abandoned its investigation. At that point, the defendant is presumed to have a right to a return of the property and the government bears the burden of demonstrating it has a legitimate reason to retain, rather than return, the property. To meet this burden, the agency must be able to show that returning the property would be difficult or costly, or that it has another reason beyond its use as evidence in an open case.

Regardless of the agency’s reason, it must provide evidence to support its argument. Agencies should consider the circumstances on a case-by-case basis to determine if there is a reasonable justification to retain the property, and if evidence can be provided to support that reason. While obvious contraband — like illegal weapons, drugs and the child pornography in this case — need never be returned, all other property must presumptively be given back to the owner after the case has concluded. However, agencies may have very good reasons to retain the property. For example, public safety and rehabilitation may qualify as rationale for opposing the return of property. Law enforcement may consider assistance from the probation department regarding the return of an offender’s property, particularly during the term of probation. Another option would be to argue against returning the property directly to the offender, and rather return it to a family member or other responsible person.

Summary Analysis: In United States v. Gladding, after defendant Gladding pled guilty to receipt or distribution of child pornography, he filed a request for the return of computer files that were not considered to be contraband. While the defendant conceded that the computers and electronic storage devices in question were forfeited, he requested the government return his personal emails and family photos contained on his computer that were not associated or linked to the material considered to be contraband.

The government claimed that segregating contraband from noncontraband files would be both difficult and time consuming. The Court of Appeal held that, since the government failed to submit any evidence supporting its position, it failed to meet its burden to prove that it had a “legitimate reason” for not returning the files. The court emphasized that the difficulty and cost of segregating data can be a legitimate reason for the government to retain a defendant’s property; however, the government must produce evidence that has a tendency to show its cost concerns are reasonable under the circumstances. Because the government did not submit any supporting evidence for its assertion that returning the property would be difficult or cost consuming, it did not meet that burden here, the court ruled.

The court provided several alternatives to a government agency that has received such a request, including requiring the defendant to pay the costs of segregation or providing the defendant with a printed directory of all files so a more detailed request for specific items can be made.

Tor Anonymizer for Lawyers by Christopher Hopkins on 4/21/2014

Tor Anonymizer for Lawyers by Christopher Hopkins on 4/21/2014

Subscriber Does Not Have Fourth Amendment Privacy Interest in Own IP Data, Holland & Knight

Subscriber Does Not Have Fourth Amendment Privacy Interest in Own IP Data
In 2012, the Supreme Court decided the case of United States v. Jones, 132 S. Ct. 945 (2012). Jones involved the government's use of a GPS tracking device on a vehicle and the information gleaned therefrom. The holding was that the defendant could suppress the evidence based on the Fourth Amendment's prohibition against "unreasonable searches and seizures;" because the GPS was placed on the underside of the defendant's car while on his property. Two separate concurring opinions, written by Justices Sotomayor and Alito, each observed that technology had advanced to the point where "electronic or other novel modes of surveillance" are not contingent on a physical invasion of property. Additionally, each observed that individuals may now have a reasonable expectation of privacy under the Fourth Amendment, if only because people now reveal a "great deal" of information about themselves while undertaking "mundane tasks." A recent case in the Eighth Circuit involved an attempt to extrapolate these concurrences into a viable argument that personal data necessary to use the Internet, as well as identifying data intrinsically associated with said use, contained a "reasonable expectation of privacy" even if it was disclosed to a third party. See United States v. Wheelock, No. 14-1504 (8th Cir. 2014). As detailed below, this argument was unsuccessful.


A member of the Minneapolis Police Department, Officer Dale Hanson, learned that child pornography was available for download from a certain Internet Protocol (IP) address with Comcast as the Internet Service Provider (ISP). After Hanson was granted an administrative subpoena by the county attorney, he submitted the subpoena to Comcast as the ISP in order to learn the subscriber information associated with the IP address. Comcast provided information, including name and address, to Hanson showing that the IP address was associated with defendant Guy Edward Wheelock.

Utilizing the information identifying Wheelock, Hanson obtained a search warrant and its execution yielded several devices containing child pornography and a computer actively downloading suspected child pornography files via a peer-to-peer file sharing program.

Wheelock was then charged with "possessing, receiving, and attempting to distribute child pornography" in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1) and (b)(2). At the trial court, Wheelock argued that all evidence gleaned from the administrative subpoena should be suppressed under the Fourth Amendment. This argument was denied, and Wheelock thereafter conditionally pled guilty to receiving child pornography, thereby preserving the suppression issue.

Legal Analysis/Conclusions

On appeal, Wheelock again argued that the administrative subpoena utilized by Hanson violated the Fourth Amendment as well as federal and state statutes. Specifically, Wheelock averred that he possessed a Fourth Amendment privacy interest in the subscriber information Hanson obtained from Comcast pursuant to the aforementioned subpoena. In order to have a "constitutionally cognizable privacy interest" under the Fourth Amendment, Wheelock had to show (1) a reasonable expectation of privacy in the areas searched or the items seized, and (2) that society is prepared to accept the asserted expectation of privacy as objectively reasonable. See United States v. James, 534 F.3d 868 (8th Cir. 2008).

Under the "third-party doctrine," the Fourth Amendment does not prohibit the obtaining of information (Wheelock's subscriber data, including IP address) revealed to a third party (Comcast) and conveyed by that third party to Government authorities (Hanson). See United States v. Miller, 425 U.S. 435 (1976). The Wheelock court noted that this doctrine was "dispositive here," as Comcast was in possession of the information voluntarily disclosed to it by Wheelock, including the IP addresses, and its disclosure to Hanson did not violate any claim Wheelock may have had to a reasonable expectation of privacy in his IP address. Accord United States v. Perrine, 518 F.3d 1196 (10th Cir. 2008) ("Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation.").

Wheelock questioned this logic and the continuing viability of the third-party doctrine in light of portions of the concurring opinions by Justices Sotomayor and Alito in Jones. To reiterate, both justices observed that the Fourth Amendment jurisprudence with respect to the third party doctrine could require a reevaluation in light of the unique demands of rapid technological advancement. However, the Wheelock court noted that although "[t]ime may prove Whitlock right," the majority opinion in Jones did not revise its view on the third-party doctrine. Therefore, the court in the instant case was bound by precedent to conclude that Wheelock did not possess a constitutionally cognizable privacy interest in his subscriber data.

The many (impossible?) challenges of federal child pornography sentencing,

The many (impossible?) challenges of federal child pornography sentencing

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March 5, 2013

The many (impossible?) challenges of federal child pornography sentencing
The title of this post is inspired in part by the US Sentencing Commission's recent report, which highlights many of the flaws with the current child porn sentencing guidelines and set forth a number of ideas and needs for effective reform (basics here and here). But what is really driving it is this new local article reporting on a federal sentencing in Maine, headlined "‘There will be no more victims,’ judge tells man at child pornography sentencing." First, here are the basics of the sentencing story:

“There will be no more victims of Walter Mosher,” a federal judge told the 65-year-old convicted sex offender Monday in sentencing him to more than a dozen years in prison for possessing child pornography.

U.S. District Judge John Woodcock sentenced Walter A. Mosher Jr. of Hampden to 12 years and seven months behind bars. The judge also ordered him to remain on supervised release for life when he is released.

Mosher is scheduled to be sentenced Wednesday at the Penobscot Judicial Center on one count of gross sexual assault. Mosher reported to police through his attorney that he molested a boy under the age of 14 between Feb. 1, 2011 and March 1, 2012, according to the sentencing memorandum filed in federal court by his attorney, Jeffrey Silverstein of Bangor. Mosher pleaded guilty to the Class A crime Nov. 21 at the Penobscot Judicial Center.

Under the federal sentencing guidelines, Woodcock was allowed to consider Mosher’s recent guilty plea as “relevant conduct” in connection with the possession of child pornography charge, even though the victim was not depicted in the images found on Mosher’s computer. The federal judge focused on the sexual abuse of the child as he directed his comments at Mosher.

“There are some cases in this court that cry out for justice and yours is one of them,” Woodcock told Mosher shortly before sentencing him. “This was an inexplicable and hideous violation of trust. What we’ve seen today is just the tip of the iceberg of pain you have caused.” A parent of the victim told the judge that Mosher needed “to go away, and go away for a very long time.”

Mosher was required to register as a sex offender because he was convicted in 1986 in Aroostook County Superior Court in Houlton in connection with the molestation or abuse of 15 minors, according to the sentencing memorandum. Since serving 11 years on the 1986 charges, Mosher was not charged with another crime until he was indicted by a federal grand jury on March 15, 2012, according to court documents.

In an emotional statement, Mosher described in graphic detail how he was sexually abused as a child by a female relative. He said that when he committed his earlier crimes, he was going through a divorce and drinking heavily. “I am deeply ashamed and sorry for what I have done,” he told Woodcock. “I don’t know why I have done these things. I have no idea how I got to a place to do these horrible things.”

Mosher has been held without bail since his arrest the day after he was indicted. Mosher pleaded guilty to possession of child pornography in June in federal court. According to court documents, Mosher’s computer contained images of child pornography, specifically digital images and videos that were produced using minors engaged in sexually explicit conduct....

Because of his 1986 convictions, Mosher faced a minimum of 10 years in federal prison and a maximum of 20 years and a fine of up to $250,000. On the gross sexual assault charge, Mosher faces up to 30 years in state prison and a fine of up to $50,000.

Even without knowing any more that these most basic details about the defendant in this case or the particulars of his crime, it is easy to see all the tough questions facing Chief Judge Woodcock: e.g., should the defendant's federal child porn sentence here be longer (or shorter) given that he is surely soon to get a lengthy state sentence for gross sexual assault? should the defendant's recidivism at such an advanced age mean that a federal sentence now should try to ensure Mosher dies in prison, or should the sentence at least offer the defendant a glimmer of hope that he might be able to be free again in his 80s? With the facts of the criminal and the defendants criminal history so troublesome, should the defendant get much (if any) credit for pleading guilty and accepting responsibility?

I could go on and on highlighting all these challenges in this one case, but what really caught my attention when reviewing this article was these notably disparate headlines below the piece noting "similar articles":

In turn, a quick search for headlines from the same local Maine paper (the Bangor Daily News) revealed these additional sentencing headlines concerning the disposition of child porn charges over just the last 24 months:

A quick click through to a number of these article reveals that there are a number of striking parallels as well as a number of striking differences in the offenses and offenders in these cases. Nevertheless, I still find notable and telling that even in a small and seemingly homogeous federal district like Maine, here is an accounting of the number of months in prison given to 10 child pornography offenders (going from lowest to highest sentence):

6 months; 12 months; 60 months; 84 months; 151 months; 192 months; 192 months; 240 months; 300 months; 340 months

The point of my post here is not to assert or even suggest that any of these referenced sentences is right or wrong or should be higher or lower. Without spending a lot more time looking through the facts of all these cases, I think it is extremely hard to reach even a tentative conclusion about this pattern of sentencing result. But that is my main broader point: there is, of course, a pressing interest and enduring goal for everyone involved to try to determine the "right" sentence in federal child pornography cases not only in each individual case, but also across a range of cases. But, these cases all necessarily raise so many important and challenging issues, I wonder and worry if the goal to get federal child pornography sentencing "just right" is a kind of "fool's gold" that many will pursue at a great cost but ultimately with little of value to show from the pusuit.

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The fundamental problem is that there is no underlying coherency to the so-called crimes that these people have committed. We see this not only in the random nature of sentencing but also in the imbroglio dealing with the issue of restitution for child porn victims. So I interpret your point Doug as "it is a waste of time to try and make sense out of the nonsensical". I agree. The better solution, however, is to get rid of the nonsense that are child porn laws to begin with.

Posted by: Daniel | Mar 5, 2013 12:14:39 PM

This will continue to be a problem until the law recognizes that accountability and risk are separate issues. Age is not a factor when holding offenders accountable, but it is a consideration with respect to risk. Risk decreases with age. Deprivations are used as to each. That deprivation that is most restrictive should control at any given point in time.

The current system is a historical relic.

Posted by: Tom McGee | Mar 5, 2013 12:58:05 PM

Risk is probability times loss. So one necessary step in any risk calculation is defining the loss. If there is no loss there is no risk because any number times zero is zero.

In child pron there is no agreement as to whether there is in fact a loss and if so what type it is. Is the loss to the defendant whose mind becomes corrupted? Is the loss to society? Is there a loss to the victim? This is the core of problem with restitution and the debate about proximate cause. If harm (loss) cannot be quantified then risk cannot be quantified and if risk can not be quantified then it is gobbledegook to keep using the word.

So what is the loss in the child porn context? It cannot be defined rationally let alone quantitatively. So risk is not an apposite concept in this context.

Posted by: Daniel | Mar 5, 2013 1:47:12 PM

Sometimes we just have to see what's in front of our face. Mosher is a serial child molestor, and at 65, we all know perfectly well that he isn't going to stop. He still uses as an excuse alleged abuse that happened (if it happened at all) 50 or 60 years ago. And he lies about it as well. He says, to quote the article, “I don’t know why I have done these things."

What a crock. He knows perfectly well why he does them. Because he gets off on it.

There is simply no use in poking through this guideline or that. Under the law (Booker/Gall/Kimbrough) the guidelines are advisory only. Usually that means that the judge is free to give, and typically (when a departure is granted) does give, a below-guideline sentence. What it means this time is that he's free to give an above guideline sentence. SCOTUS didn't say that the judges' expanded discretion had to be used in only one direction (much as the NACDL would like to think otherwise).

As I said, what we're dealing with here is a serial child molestor who had a chance to stop. But he didn't, and he's not going to.

The court got this one just right. Bye, bye, Mr. Mosher.

Posted by: Bill Otis | Mar 5, 2013 2:23:30 PM


By risk, I am referring to the risk that an offender will commit another crime. No one can predict with complete accuracy that a person will commit another crime of the same or a different kind. The best that can be done is to predict that risk within a probability range; e.g., X chances out of 100. The State must decide what level of risk is acceptable. If this cannot be done for political or other reasons, then risk should be taken off the table. Of course, the public will suffer the consequences.

Intuitive, rather than statistical risk determinations are really bad, as confirmed by research.

As it is now, we hide the risk question inside of some other poorly articulated sentencing objective, which is a form of sentencing double-talk. Then we complain about disparity.

Posted by: Tom McGee | Mar 5, 2013 2:26:54 PM

Every prosecution is another opportunity to destroy the life of a lawyer traitor. The federal government is the biggest downloader of child porn. Without their massive subscription amounts, child porn producers would go out of business. The illegality of child porn also raises the costs and profits for organized crime syndicates severely abusing innocent children. The illegality also promotes the abuse of real children in the vicinity of the pedophiles, family members, children entrusted to them, or strangers. Most prosecutors today are feminists or their male running dogs, seeking te assets of productive males for jealousy, hatred, and profits to the criminal cult enterprise that is the lawyer profession. Thus, there should be no quarter in the war against the lawyer war machine.

The opening salvo pushing back should be to demand total e-discovery of all prosecutor personal and work computers to look for an improper motive. If the judge refuses this reasonable request, make the same discovery request of the judge. Refer all child porn found to the FBI. The discovery should include recovery of all erased files.

Posted by: Supremacy Claus | Mar 5, 2013 11:42:38 PM

sorry I am with bill here. 11 in 86 then 2011 another child and now in 2012 child porn? Good bye. LWOP would work just fine!

Posted by: rodsmith | Mar 6, 2013 12:57:08 AM

my big question is why was this not done in 2011 when the new child's charge?

Posted by: rodsmith | Mar 6, 2013 12:58:23 AM

From where I sit you seem to be making the assumption that because society has defined something as a crime by definition there must be a loss because if there wasn't a loss there would be no crime. Nonsense. One cannot solve the intuitive problem with circular reasoning. It is error to assert that risk of re-offending= probability of committing crime times(x) crime. All that does is collapse the risk into probability. Risk!=probability; Risk=probability X loss.

The accuracy of society's ability to predict is not at issue; it is a irrelevant concern because probability is only one half of the risk equation. Loss is the other half. And by definition loss must be something other than the commission of a crime. To state it mathematically, if Risk(Z)=Probability (K) x Loss (L) then "crime" or "offense" cannot simultaneously be the criterion for Z, and K, and L.

Posted by: Daniel | Mar 6, 2013 12:42:50 PM


I am not sure I understand your comment. Please let me explain. The Target Problem is Antisocial Behavior, which is a very complex social problem. People have great difficulty with complex problems so they simplify, by responding to easier, included Heuristic Problems. Heuristics are devices that are used to simplify, in this case the Representativeness Heuristic. Crimes are Heuristic Problems. They are representations of the Target Problem (Antisocial Behavior).

Decision-makers respond to these Heuristic Problems. Not only crimes, but criminal offenses and the offenders risk of committing another crime are Heuristic Problems. All three are representations of the Target Problem. Decision-makers must respond to all three of these representations of the Target Problem in order to correct the core problem. This means that the state must have a way of combining the state's responses to each. Each response includes an objective, strategy and set of tactics; i.e., restraints, requirement and takings, all of which are deprivations.

This description of the task is based on the work of Daniel Kahenman, who received the Nobel Prize in 2002. It is summarized in his recent book, Thinking Fast and Slow.

Posted by: Tom McGee | Mar 6, 2013 4:02:58 PM

Skimming quickly through those articles, it doesn't necessarily look like this is an arbitrary distribution of punishment. For one thing, although the non-lawyer reporters (writing for a non-legal audience) lump all of these cases under the umbrella of "child porn," in fact it seems that there were likely different crimes committed.

For example, the year-and-a-day case says that the man simply had some images on his computer (possession, possibly receipt), and it implies that the government endorsed, to some extent, his explanation that he had downloaded them out of curiosity (that sounds like something that wouldn't usually be very plausible, but maybe it really was just a handful of images and dates, which is unusual for an often-compulsive behavior). On the other hand, the man who received 25 years was *producing* pornography involving himself and a 4-year-old, and *distributing* it on the internet. Similarly, the man who got 30 years was also directly producing new images and distributing them (rather than simply viewing pre-existing images). It seems to me that is sort of an apples-and-oranges situation.

Another factor that seems relevant is that there seem to be some obvious aggravating and/or mitigating circumstances in many of the cases. For example, the two 16-year sentences involved defendants who had been in positions of trust -- a prosecutor, a kindergarten teacher. The 20-year sentence involved a man who had a history of actual sexual assaults on minors (as opposed to more passive internet viewing of photos).

In the low/middle end of the range, the 7-year sentence was for only possession, but it was possession of thousands and thousands of images. The 5-year sentence was also only possession, but the defendant had been employed at an after-school program for children. (As for the sixth-month case, it pleaded because of proof problems, and more importantly it was in *state* court so really isn't a relevant comparator.)

I'm not saying there aren't problems with child porn sentencing. But I don't know that this set of examples is the best way to illustrate those problems. You can always second-guess a discretionary sentence, but I actually don't think this range of facts and outcomes seem particularly arbitrary or nonsensible. On the contrary, it seems pretty easy to identify rational factors that would explain the variation (mere possession is less serious than production/distribution; a few images is less serious than many; abuse of a position of power or trust makes a crime against children especially serious; evidence that the defendant has acted on sexual feelings for children in the past, rather than simply indulging in fantasy on the internet, makes the danger of recidivism/risk of future harm/need to protect society much more serious).

Posted by: anon | Mar 6, 2013 4:16:21 PM

The disparity in sentencing is probably dependent on whether the defendant has any previous convictions or allegations of child molestation in his PSR. Then the whole punishment is focused on the charges of molestation and the defendant is toast. I have no problem with defendants being severely punished for molesting kids, but I do have a problem with such charges being boot-strapped with the child porn charges. The defendant is ordered to admit all his prior molesting in the PSR, but receives a worse sentence for doing so. Is this a 5th or 6th Amendment violation? Or else prior molesting may merely be alleged in the PSR without being proved in trial.

Posted by: Alan Winograd | Mar 6, 2013 6:43:50 PM

Alan Winogard --

The whole point of the Booker remedy -- making the guidelines advisory, which the defense bar loves -- was to avoid the other remedy, i.e., to require proof BRD of sentencing facts. The Court explicitly rejected the latter, leaving the preponderance standard and the real offense system intact.

Not that it makes a difference here. The defendant admits he's a serial molestor, so putting him away for a hefty amount of time is, as you note, really not a problem.

He's 65 and not going to change. At this point, the whole purpose of sentencing has to be just to protect future victims.

Posted by: Bill Otis | Mar 6, 2013 8:12:10 PM

You hit it right on the head there Bill!

I'm all for giving a first time offender a change with successful treatment program and supervision while the treatment is being done.

But this guy is at a minimum a 3 time loser if we just count the 3 diff set's of charges.

If we count vic's then the number jumps to 12 minimum!

Like I said LWOP works just fine. In his case the only question is does he serve it in a regular prison or go right to a specialty geriactic one!

Posted by: rodsmith | Mar 6, 2013 9:54:54 PM

Bill Otis:

The point is that this sentence was a coarse-grained approximation that was based on the judge's intuition. It does not differentiate between the several different ways to represent the target problem: e.g., crime, criminal offense and risk of recidivism. It controls the duration of restraint, but only roughly controls its level. One's intuition may differ substantially from public policy.

It should have been a fine-grained determination based on reason and public policy.

Most judges are pretty good at intuitive decision-making. Reasoned-decision making is another matter, especially when the problem is highly complex as here. It calls for training and collaboration with other decision-makers in the process. Judges can't fix the target problem all by themselves.

Posted by: Tom McGee | Mar 7, 2013 5:34:29 PM

What complex problem tom?

In this case we have an individual who has had three diff chances to get treatment to fix his impulse control and learn to behave in normal society!

He's failed all 3 times. BYE-BYE!

Posted by: rodsmith | Mar 7, 2013 10:42:09 PM

Sorry Two diff chances! this is strike 3!

Posted by: rodsmith | Mar 7, 2013 10:43:17 PM


Antisocial behavior is the Target Problem, which is a very complex social problem. Crimes are representations of the Target Problem, or what cognitive scientists call Heuristic Problems. Of course, there are other ways to represent the problem; i.e., criminal offenses and the offenders risk of recidivism. The criminal law oversimplifies, thereby missing the point.

Posted by: Tom McGee | Mar 8, 2013 1:22:56 AM

Tom McGee --

"The criminal law oversimplifies, thereby missing the point."

With all respect, Mr. McGee, you overcomplexify, thereby missing the point.

This guy is a serial child molestor who, at 65, isn't going to stop. The only serious "point" of the sentencing should be to put him out of business by incarceration, since he has spent years showing that nothing else works. During those years, child victims have paid the price for all this needless complexity you would inject into the sentencing process.

Some sentencings are complex, true. This one isn't. Rodsmith is right on the money.

Posted by: Bill Otis | Mar 8, 2013 8:47:26 AM

Bill Otis--

With all due respect, I think it is better to be smart about this problem then ham-handed. Please let me go at this again, but in a more complete way.

The target problem is antisocial behavior, which is a very complex and difficult problem. Decision-makers cannot process complex problems of this kind without simplifying them, thereby approaching them in several different ways. Heuristics are the means we use for this purpose. There is a large literature on this subject if you care to check it out. So we have the target problem, which is represented by several heuristic problems. Crimes, criminal offenses and the risk that a person will commit another crime are heuristic problems.

We penalize people for committing crimes. Penalties are fixed before the fact at a time when the problem is not fully knowable. Punishments are fixed after the fact at a time when the problem has become fully knowable. Crimes and offenses do not change once thy are established. People who commit criminal offenses are known to have a risk of committing another crime. But this risk is changeable. So here we have an argument for taking action. It has a priming premise, base premise and conclusion. This argument puts the offender in jeopardy.

Penalties, punishment and risk management are the three core approaches that are used to correct the target problem; namely, antisocial behavior. All three are needed in most cases. That approach that imposes the greatest restraint should control at any given point in time. Deprivations are recursive; i.e., less restrictive deprivations fit within more restrictive deprivations.

Your approach to sentencing is coarse-grained; I am proposing a more fine-grained approach. In this case we would both arrive at about the same place, but a fine-grained approach would be far more sensitive to the nuances in public policy. The restraints imposed could be graduated. In short, it is manageable.

Posted by: Tom McGee | Mar 8, 2013 1:48:36 PM

I will give you this tom!

"The target problem is antisocial behavior, which is a very complex and difficult problem."


LOL always a but!

He's had two diff chances to get treatment to fix or at least learn to control his behavior. Sorry but now it's BYE-BYE time. I know sex offender stats big time. The illegal sex offender registration program is a real biggie with me.

I know that 90% of all sex crimes are First time offenders no registry in the universe will stop!

but I also know that 10-15% are the worse of the worst that nothing but prison will fix!

This guy is def part of that 15%

The fact that 80-95% Never reoffend tell me it's not that fucking hard to stop!'

So this guy is either beyond help or just doesn't give a shit if he get's caught!

Either way he's OUT!

Posted by: rodsmith | Mar 8, 2013 8:13:36 PM

You know we've now killed Erika bill! If she's reading this the shock has killed her!

Posted by: rodsmith | Mar 8, 2013 8:17:28 PM

rodsmith --

I never quite know what to make of Erika. She's one of the smarter, and crazier, and more left-wing commenters in these parts. In some ways she reminds me of SC -- a lot of potential, almost all of it undone by a somewhere-outside-of-earth perspective.

Posted by: Bill Otis | Mar 10, 2013 11:47:44 AM

oh i agree bill. But i think she's a little farther off the path than SC. At least he is aiming at a real target!

Posted by: rodsmith | Mar 10, 2013 11:55:43 PM

Is looking at a picture the same as molesting a child? OF COURSE NOT, but in the eyes of the law it is. Someone who looks at CP needs mental help, they are people cursed with terrible genes / childhood and made a mistake of caving into their demons. USA should take the stance of other countries and provide help for these individuals.

Should molestation / rape of children go unpunished? Of course not! But its not the same as looking at a photo

Posted by: Shane | Jan 3, 2014 10:08:44 AM
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DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken ...............Federal Child Pornography Offences

DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken ...............Federal Child Pornography Offences


Computer Forensics:The Need for Standardization and Certification Matthew Meyers and Marc Rogers..................................International Journal of Digital Evidence

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