Note: While this was not an NCIA case, this ruling is evidence of an increasing trend of judges taking serious consideration of 3553(a) factors and imposing individualized sentences.

New Jersey Law Journal
February 13, 2009

The defendant in this case had never been in trouble with the law before he pleaded guilty to a six-count indictment for receipt and transportation of child pornography over the Internet. There is no evidence the defendant did anything more than look at or share with a handful of individuals his collection of hundreds of shameful pictures and videos. Nevertheless, sentencing enhancements recommended by US Probation raised his potention setnence within the US Sentencing Guidelines from approximately the five-year statutory maximum to more than 20 years, even above the statutory maximum. The government sought the highest possible sentence.

US District Judge Katherine Hayden, no stranger to parsing the Byzantine guidelines and attempting to wrest justice from their static numbers, invited the US Sentencing Commission to appear and explain how the guidelines could result in a first offender facing a sentence over the statutory maximum. The commission declined the invitation, but Judge Hayden heard from a defense expert and both sides wrote briefs concerning the rationality of the guidelines in this case. What the experts said, some cases say and the judge concluded was that the guideline ranges for these crimes are so filled with hidden and redundant enhancements, especially for the first offender, that "the predator becomes indistinguishable from the voyeur."

In this case, Judge Hayden wrote that the agent attempted to qualitatively describe the defendant's collection of pictures as far worse than others she has seen. Unfortunately, the judge said, how do you weigh such testimony comparing "bad" and "really bad" child pornography - since judges have little experience and the determination can result in draconian sentencing enhancements? While the government argued that there was no need to distinguish between child abusers and producers of child pornography on the one hand and consumers on the other, Judge Hayden said that common sense requires it. She did not feel the defendant's collection was especially egregious and was intermixed with numerous legal images. While there was no excuse for the defendant's actions, she wrote, "the Court cannot make [the defendant] a surrogate for the monsters who prey on child victims through actual contact."

The defendant's lawyers put on a parade of witnesses, including clergy, neighbors, family and friends to show his reputation as a good and caring man. The government brought a mother from Wisconsin whose sons were abused by another individual who had taken and circulated the photographs. Judge Hayden took note how the defendant articulately acknowledged what he heard: that he could not have been more wrong that his crime was victimless. Ultimately, she sentenced the defendant to the statutory minimum of five years - about average, she said, for child pornography offender, but as federal criminal practitioners know, far above average for first-time offenders in general, and about 90 percent of that time must be served. The court's scrutiny, she said, leads her to conclude that the sentencing guidelines - at least in this instance - do not guide. "To the lawyer whose brief asked, Have we gone mad? The answer is no," Judge Hayden concluded rhetorically, reiterating her responsibility to sentence in accordance with reason and fairness.

The child pornography sentencing guidelines are a perfect example of hysterical and unbridled congressional and administrative action and prosecutorial extreme that have robbed the guidelines of their rationality. Although not binding on the court, the courts must articulate and defend any departure from them to protect the sentencing from appeal. No one is arguing that a crime such as this is excusable or should go unpunished. All Judge Hayden did - as she did when she pointed out that Passaic County Jail was an abomination or in other cases where the guideless created unjust and disparate results - is to ask whether justice is being served. It is a tribute to her that she took the time, held hearings, scoured case law and statistics and drafted a 46-page opinion involving a defendant accused of such a reviled crime, for the sole purpose of finding justice in a patchwork of hysteria.

To read the full opinion, click here.