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.

Criminal Justice and Behavior: Free articles

During the month of May only, Sage Publications is offering free access to select articles from the 2009 volume of Criminal Justice and Behavior. Selections of potential interest to my readers include the following:

The Prediction of Violence in Adult Offenders: A Meta-Analytic Comparison of Instruments and Methods of Assessment
by Mary Ann Campbell, Sheila French and Paul Gendreau

Closing The Revolving Door? Substance Abuse Treatment as an Alternative to Traditional Sentencing for Drug-Dependent Offenders
by Tara D. Warner and John H. Kramer

Inferring Sexually Deviant Behavior from Corresponding Fantasies: The Role of Personality and Pornography Consumption
by Kevin M. Williams, Barry S. Cooper, Teresa M. Howell, John C. Yuille and Delroy L. Paulhus

Credit goes to Jarrod Steffan, a forensic and clinical psychologist in Wichita, Kansas who specializes in criminal forensic psychology, for alerting me to this special offer.

Teen sexting resources

"Sexting" is a hot topic these days, especially in the wake of this month's U.S. Third Circuit Court of Appeals ruling in Miller v. Mitchell that it is unconstitutional to prosecute teens for child pornography solely based on their cell phone photos. The highly publicized Pennsylvania case illustrated the unintended consequences of current sex offender hysteria. The district attorney's office in Wyoming County had threatened to prosecute a teenage girl on felony child pornography charges unless she underwent mandatory reeducation. An appellate court barred the prosecutor from retaliating against young Ms. Doe for invoking her constitutional right not to attend the education program.

Related resources:

• An excellent overview by Tamar Lewin of the New York Times, "Rethinking Sex Offender Laws for Youth Texting"

• A TV news video of forensic psychology students speaking about teen sexting at a state government hearing in Connecticut

• The website of the Center for Safe and Responsible Internet, containing a wealth of information and resources on the widely hyped teen sexting phenomenon
  

Kiddie porn: Risky to ignore

Let's say you are a defense attorney assigned a criminal case that has nothing to do with sex. A garden-variety case of robbery and murder. No rape, no pedophilia, nothing sexual at all.

You might want to think about sex, anyway.

In a case out of Missouri, the high court ruled that it was reversible error for the defense attorney not to have checked out the child pornography on the murder victim's computer.

What relevance does that have to murder, you might ask?

Not much. The defendant, Mark Gill, and a buddy kidnapped Ralph Lape from his home in 2002, bound him with plastic ties and duct tape, and murdered him in a corn field. The motive was financial gain: Gill had learned that Lape had a large amount of money in his bank account.

But when Gill was arrested, he had Lape's computer with him, and investigators found images of underage girls and bestiality. So, when the prosecution presented evidence that the victim was an upstanding fellow, the defense attorney should have brought in those images as rebuttal evidence of bad moral character. Perhaps the jury would not have been so quick to impose the death penalty if it had not heard family members give a series of glowing and unrebutted reviews of Lape's generous character, the court reasoned.

Under the landmark case of Strickland v. Washington, the defense attorney's failure to pursue this angle was ineffective assistance of counsel, meriting reversal of Gill's death sentence and a new penalty trial, the court ruled.

The smutty material was also an issue in the trial of the co-defendant, Justin Brown. The prosecutor won a motion excluding the computer's sexual content as irrelevant unless the penalty phase witnesses opened the door by portraying the victim as someone who "walks on water" or as a "saint," in the trial judge's words. Accordingly, family witnesses were careful at Brown's trial not to overstate the victim's virtuous character. Brown was spared the death penalty, receiving a sentence of life without parole.

Mitigation usually focuses on defendant, not victim

Typically, it is defense attorneys' failure to present evidence of a defendant's good character that is grounds for reversible error under Strickland. In fact, just this week the U.S. Supreme Court in Porter v. McCullum unanimously reversed a death verdict because the defense attorney failed to present evidence of military heroism during the Korean War, as well as other potentially mitigating facts such as post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

Pornography ubiquitous

At Gill's penalty phase retrial, one likely issue for the prosecution will be others with access to the computer. Ironically, it wasn't only the victim who downloaded pornography onto the computer. The murderer, Gill, also downloaded pornography, according to the prosecutor, even using the victim's credit cards to pay for it!

That isn't surprising. As it turns out, just about every male over the age of nine has looked at online pornography, according to new research out of Montreal. The researcher, Simon Louis Lajeunesse of the Universite de Montreal, said when he set out to find men in their 20s who had not consumed pornography, he could not find any. He found that most boys seek out pornographic material by the age of 10, when they are most sexually curious.

The researcher said his preliminary findings, funded by the Interdisciplinary Research Center on Family Violence and Violence Against Women, refute the "demonization" of pornography. Contrary to popular beliefs, he said, pornography does not produce negative attitudes toward women or aggressive behavior for men:

"Pornography hasn't changed [men's] perception of women or their relationship which they all want as harmonious and fulfilling as possible. Those who could not live out their fantasy in real life with their partner simply set aside the fantasy. The fantasy is broken in the real world and men don't want their partner to look like a porn star."

As online pornography becomes more ubiquitous, it will undoubtedly play a more prominent role in court cases. It will be interesting to see whether jurors care. Unless the pornography is particularly extreme or offensive, some male jurors may feel sympathy for the victim. They may see the issue as a distraction or even turn against defense attorneys who try to sully a victim's reputation.

Lape, after all, was letting Gill stay in a trailer on his property at the time he was killed. And just because he may have had some ugly sexual interests, that does not mean he was not a financially generous man as his family members testified.

The Missouri Supreme Court opinion in Gill v. Missouri is online here. The Southeast Missourian has news coverage. Additional case background is online here.

Hat tip: Sentencing Law & Policy