MA - US judges balk at rigid child porn sentences

Original Article

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Federal Versus State Child Pornography Charges: What's the Difference?

02/12/2012

By Milton J. Valencia

Say guidelines often demand punishment beyond severity of crime

As law enforcement officers and policy makers toughen prosecutions for the distribution and possession of child pornography, they are encountering increasing resistance from federal judges in what has become a caustic conflict over the appropriate punishment for a heinous crime.

In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines.

That figure has been steadily increasing since the Supreme Court in 2005 and 2007 affirmed that judges have the right to depart from commission recommendations.

Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography - far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal.

The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. "As far as I’m concerned, there are some problems with the guidelines," she said in open court in issuing the sentence.

In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.

The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority. A public hearing is set for Feb. 15 in Washington.

Judges, including several locally, argue that changes in child pornography sentencing approved by Congress over the past decade, which add extra time for various factors such as the number of images involved, have resulted in sentences that are far too severe.

"Congress sets policy, but Congress doesn’t sentence individuals, judges do," said retired US District Court Judge Nancy Gertner, who served on the bench in Boston until September 2011. "The guidelines don’t make sense, even for one who wants to be tough on pornography. The measure of the guidelines doesn’t match the culpability of the defendant."

Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability. But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences.

They say Congress - and society - have called for the toughened penalties for the crime.

"There’s been recognition nationwide that there’s been an epidemic," said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. "There is an exploitation [of children] that goes on every time those photos are shared."

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