In a nationwide series of hearings, members of the U.S. Sentencing Commission have heard from federal judges seeking reduced sentences for a group of defendants one would think unlikely to get sympathy from the bench: possessors of child pornography.
From New York to Chicago, and recently in Denver, federal judges have testified before the commission, which sets federal punishments, that the current sentencing structure for possessing and viewing child pornography is too severe.
The commission has made reviewing child-pornography sentencing guidelines a priority of its work, which will end in May and could include a change to the guidelines to allow shorter sentences for future offenders.
Judges, for the most part, have based their argument on a belief that some of the defendants who view child pornography have never molested a child or posed a risk to the community and may be better served by treatment rather than prison.
As federal guidelines now stand, the number of images and the way the contraband is obtained enhance prison terms. A first-time offender with no criminal history can be sentenced to 10 years in federal prison.
In the Colorado case of Dale Ilgen, federal agents found 1,627 photos and 23 movies depicting prepubescent children being sexually abused by adults.
Ilgen admitted he downloaded the contraband and pleaded guilty, and now prosecutors are seeking to lock him up for six to eight years.
But the 50-year-old Parker man is fighting for a probationary sentence below the guidelines set by the commissioners and Congress.
Ilgen will learn the outcome of his case Feb. 4 when he appears in U.S. District Court in Denver for sentencing.
His attorney, Matthew Golla, says there is no proof his client is a risk to the community and that he has some physical and mental impairments that make prison an unsuitable option for him.
"Throughout the course of this case, whenever discussions arose surrounding the potential advisory guideline ranges, Mr. Ilgen at times crumbled into a ball on the floor of counsel's office unable to communicate," Golla wrote in a motion for a lesser term.
Precedent for probation
Golla also argues that Ilgen did not molest a child and there is no evidence he intends to do so.
"For at least one year and possibly longer, the defendant, in the privacy of his small condominium, used a single computer to download child pornography," Golla wrote. "He never chatted with anyone on the Internet regarding the images he possessed, never used the material to entice a child, nor did he produce, distribute, or trade any of the images. Mr. Ilgen has never had inappropriate contact with a child."
U.S. District Judge John L. Kane, who is presiding over Ilgen's case, has previously granted two defendants in similar cases probation rather than incarceration, drawing the ire of prosecutors.
Several medical problems
Ralph Rausch and Leslie Wilkinson got probation — with lifetime supervision — because both men suffer from severe medical impairments and the judge felt placing them behind bars would be unreasonable and detrimental to their survival.
Rausch was awaiting a kidney transplant, and moving him to the Bureau of Prisons may have knocked him off the list. Wilkinson is a paraplegic with limited use of his arms, and Kane had similar concerns about the quality of health care in the prison system and the expense.
"We do not see producers (of child porn) or the parents who sell their children or the stepfathers who attack them," Kane told the commission in October. "What we see are the men on dialysis confined to a wheelchair who spends all of his time confined already and no economic analysis of what it would cost to keep this man in prison."
Kane testified there is no empirical research referenced in the sentencing schemes to indicate whether long prison sentences will stop defendants from re-offending or help them overcome their compulsions by the time they get out of prison.
And Kane is not alone. Federal judges from Hawaii, New York and Oklahoma have made similar gripes to the commission.
"It is too often the case that a defendant appears to be a social misfit looking at dirty pictures in the privacy of his own home without any real prospect of touching or otherwise acting out as to any person," U.S. District Judge Robin J. Cauthron of Oklahoma City said in her testimony to the commission. "As foul as child pornography is, I am unpersuaded by the suggestion that a direct link has been proven between viewing child porn and molesting children."
Federal prosecutors in Colorado declined to comment on the Ilgen case or the testimony of federal judges.
But Colorado U.S. Attorney David Gaouette criticized Kane's decision in the Rausch case when he testified before the commissioners.
Gaouette also said that the Bureau of Prisons has medical facilities to care for defendants like Rausch and Wilkinson who have impairments when they enter the prison system.
"Cases like this suggest that the current state of the federal sentencing system increasingly favors judicial discretion over uniformity, consistency and certainty," he said.
In 1995, federal defendants convicted of possessing child pornography were sentenced to an average of 15 months in prison, Ilgen's attorney wrote in court documents. By 2007, first-time child-pornography offenders were receiving 102 months in federal prison.
Crime fight targets Internet
In the early 1990s, the U.S. Justice Department established the Innocent Images initiative to combat the emerging availability of child pornography on the Internet.
Before online access, purveyors of the contraband relied on sending the images through the postal system, which meant there was limited access to the material.
Ernie Allen, president and chief executive of the National Center for Missing and Exploited Children, said some judges don't realize possessing the images revictimizes the children in the photographs and fuels a growing online business.
"There are too many judges who continue to provide token sentences for what we consider to be serious crimes," Allen said. "These are images of prepubescent children, growing numbers of them infants and toddlers, and they trade with each other for purposes of arousal and breaking down the inhibitions of other children."
Allen said educating the judiciary about the impact of child pornography on victims is key.
"We are not in favor of disproportionate sentencing or disparities, but the problem here is too many judges who simply do not recognize how serious these crimes are," he said.
Looking for treatment
Bernie Mrugala, whose son Shawn Mrugala is serving 10 years in prison for possessing a vast child-pornography library, said treatment over incarceration should have been an option for his son.
"I think the thing we really have to do is figure out why. What is different about him that drives him to that? What personality traits? What is the issue here?" Bernie Mrugala said. "To put somebody in jail for 10 years may not be enough if we do not get to the crux of the matter.
"We need the power of the courts to be on our side to help maintain and control the problem to the point where this kid can be beneficial to society."
Shawn Mrugala, 33, was working as a network engineer making $60,000 a year when he got caught downloading child pornography.
His father compared his son's compulsion to drug addiction that needs treatment.
"I don't know if sending them to prison is the way to protect children, and I am more concerned about when my son gets out," Bernie Mrugala said.
"I don't think he is getting treated to the point he wouldn't do it again." ..Source.. Felisa Cardona, The Denver Post
November 29, 2009