June 6, 2011

Pornography sentence unconstitutionally cruel, judge rules

A must-read case for forensic psychologists  

"C.R." grew up in a chaotic, highly conflictual home. He was immature, socially klutzy, anxious and depressed. Friends introduced him to online pornography, readily accessible for free via peer-to-peer file sharing. He took to smoking marijuana and escaping into sexual fantasy. Between the ages of 15 and 19, he downloaded pornography, much of it involving boys ages 10-12, and shared files with other users.

When he was 19 years old, the FBI ensnared him in a sting and the world came crashing down. Under federal law, “C.R.” faced a statutory minimum of five years in prison.

Until Judge Jack B. Weinstein intervened, ruling that the 5-year minimum is unconstitutional in C.R.’s case, due to the youth’s age and immaturity.

The ruling is part of a crusade by Weinstein, one of the United States' most accomplished and respected jurists, against what he calls “the unnecessary cruelty of the law.” Previously, the 89-year-old federal judge in the Eastern District of New York led a similar campaign against rigid drug sentencing

Weinstein’s 401-page tome in United States v. C.R. should be on the required reading list of every forensic psychologist, tackling as it does many of the front-burner issues and controversies currently facing the field:
  • Adolescent brain development and immaturity
  • Risk for hands-on offending among pornography offenders
  • The misuse of risk assessment instruments (including the circular reasoning involved in assigning an offender to the “high risk” group on the Static-99)
  • The bogus disorder of “hebephilia” that you've heard about here
  • Morality and prejudice masquerading as science
Before sentencing C.R., Weinstein ordered an evidentiary hearing that would enable him to determine how best to protect the community while not unnecessarily destroying the young man’s life. Well-known experts including Robert Prentky and Meg Kaplan testified about C.R.’s low risk of recidivism, the likelihood he would face abuse in prison, and the impact of adolescent immaturity on youths’ judgment.They are quoted at length, as is a prosecution psychologist who found C.R. to be at high risk based in part upon factually erroneous information (that C.R. had visited gay "glory holes").

Ultimately, the judge still imposed a prison sentence, but cut it in half to 30 months. A longer term "lacks any legitimate penological justification" and violates the 8th Amendment’s bar on cruel and unusual punishment, he wrote:

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.? ... C.R. should be prepared to assume a useful law-abiding life rather than one of a broken and dangerous, ex-prisoner deviant. Were it not for Congress‘s strongly expressed preference for incarceration in these cases, the court would have imposed a long term of supervised release with medical treatment outside of prison.
Weinstein echoed the reasoning of the U.S. Supreme Court in two recent back-to-back cases involving juveniles. One (Roper v Simmons) invalidated the death penalty for juveniles; the other (Graham v Florida) held that juveniles could not be sentenced to life without the possibility of parole for crimes other than homicide.

This is not Weinstein's first foray into the thicket of child pornography sentencing. Last year, he vacated the conviction of Pietro Polizzi on the grounds that the jury had a right to know what punishment a guilty verdict would produce. Several jurors told the judge they might not have convicted the married father of five had they known he would have gone to prison for at least five years.

"I don’t approve of child pornography, obviously,” Judge Weinstein told the New York Times at the time. But he also said he did not believe that those who merely view images, as opposed to producing or selling them, present a significant threat to children. “We’re destroying lives unnecessarily. At the most, they should be receiving treatment and supervision.”

Although Weinstein is more outspoken than some, an increasing number of judges are balking at giving pornography viewers longer prison terms than actual child molesters and rapists often get. “Across the country, an increasing number of federal judges [are] criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade,” noted the Times report.

In his erudite, data-rich dissection of pornography and risk, Weinstein cites everyone from Malcolm Gladwell to Alex Kotlowitz (long one of my favorite authors) and Laurence Steinberg, and to our very own forensic psychology colleagues John Monahan, Jennifer Skeem, and Charles Patrick Ewing (whose newest book is another must-read).

Weinstein, by the way, has had a fascinating and colorful career. He put himself through Brooklyn College by working on the docks in New York Harbor before forging multiple and overlapping careers as a teacher, lawyer, and public servant. Back in his early days of lawyering, he helped the NAACP with the landmark desegregation case of Brown v. Board of Education. As a jurist, he’s handled many of the biggest mass tort cases in the United States, involving Agent Orange, asbestos, tobacco, breast implants, DES, Zyprexa, and handguns. More on Judge Weinstein’s interesting life and career is HERE.

I have made the case of United States v. C.R. available for download HERE. Again, I recommend that you read it for yourself. It's a great primer, packed full of useful information and references -- many of them available online.