Thorough and thoughtful district court defense of federal child porn guidelines
As readers of this blog know, in recent years a federal district judges have written thorough and thoughtful sentencing opinions assailing the long prison sentences recommended the the current federal sentencing guidelines for child porn downloading offenses. Yet, while these often-forceful decisions suggest that it is hard to justify within-guideline sentences in many downloading cases, the fact remains that roughly half or more of all child porn sentences as still imposed within the ranges set out in the federal guidelines. Thus, I am pleased to have learned of a new thorough and thoughtful opinion from a district judge in the Northern District of Ohio that provides thorough and thoughtful defense of the federal child porn guidelines.
The opinion in US v. Cunningham, No. 1:09CR154 (N.D. Ohio Jan. 26, 2010) (available for download below) is authored by Judge John Adams, and I was feeling especially patriotic and proud when I read its engaging explanation for what a within-guideline sentence of 121 months was justified in this case. The full opinion is an absolute must-read for everyone working in this area, and I found this passage with mini-slam by Judge Adams on his colleagues especially noteworthy:
In an effort to more fairly judge the nature and circumstances of this offense, the Court personally reviewed all of the images and videos.
The Court made its request to view the images shortly before the first sentencing hearing in this matter. At that time, Agent Hagan expressed surprise that the Court wished to review theimages in their entirety. Agent Hagan indicated to the Court that she had been the affiant in morethan 100 child pornography investigations and, absent a matter going forward to trial, a judge had never requested to view the photographs at issue. While only a minor sampling, this revelation was shocking to the Court. As detailed above, the agents handling these matters are able to aptlydescribe the contents of each image. Those descriptions, however, are little more than words onpaper. Absent examining the images, one cannot get a true sense of the depravity that they depict. Thus, the Court implores any reviewing Court to personally examine the images at issue and notsimply rely on a written description of their contents. The Court acknowledges that the review ofsuch images is, to say the least, uncomfortable. There are some images that are haunting, andthey cannot be unseen. However, any uneasiness felt by the individual reviewing the image palesin comparison to the harm caused by the image being created in the first place.
Download Cunningham_Sentencing_Memo
Notably, in the one case in which I testified in court as an expert witness on these matters, I did witness the sentencing judge view (in open court on a laptop only she could see) some of the child porn images for which the defendant had been convicted of possessing. Thus, I know that at least some district judges other than Judge Adams will look at the criminal images before sentencing these child porn offenders. But it seems that this practice may be the exception rather than the rule.