Defiant Judge Takes On Child Pornography Law

5-22-2010 New York:

In his 43-year career as a federal judge, Jack B. Weinstein has come to be identified by his efforts to combat what he calls “the unnecessary cruelty of the law.” His most recent crusade is particularly striking because of the beneficiary: a man who has amassed a vast collection of child pornography.

Judge Jack B. Weinstein in his chambers in the United States District Courthouse in Brooklyn in April.

Judge Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed “no risk to society.”

There is little public sympathy for collectors of child pornography. Yet across the country, an increasing number of federal judges have come to their defense, criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade.

Last week, the United States Court of Appeals for the Second Circuit vacated a 20-year child pornography sentence by ruling that the sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.

Judge Weinstein has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography.

“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.

“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

The man he has spent three years trying to save from a long incarceration is Pietro Polizzi, a married father of five who collected more than 5,000 graphic pictures of children. If prosecuted in a New York State court, he would have faced a maximum prison sentence of four years. Instead, in federal court, he faced a minimum of five years and a recommended sentence of 11 to 14 years. Because of Judge Weinstein’s intervention, he remains free as he awaits another trial.

“I don’t see Judge Weinstein as a judge,” Mr. Polizzi said during an interview as tears rolled down his face. “I see him as my father. He helps people. He doesn’t destroy lives the way the prosecutor has. He’s the one who is going to set me free from the court.”

The child pornography industry has flourished through the Internet; the number of federal cases grew from fewer than 100 annually to more than 1,600 last year. As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders’ office, the average sentence was 91 months in 2007, up from 21 months a decade before.

But the tough penalties have chafed at many judges, echoing previous battles over drug cases. Last year, judges imposed sentences below the recommended range in more than half of all child pornography cases.

“What has caused concern in courts across the nation is that we have a lot of relatively law-abiding individuals sitting in the basement downloading the wrong kind of dirty pictures facing not just prison sentences but incredibly long prison sentences,” said Douglas A. Berman, a professor at Moritz College of Law of Ohio State University, who studies sentencing issues.

In one recent case, James L. Graham, a United States District Court judge in Ohio, sentenced a 67-year-old man who had suffered a stroke to a single day in prison, along with restrictions on computer use and registration as a sex offender. As part of a deal with prosecutors, the man had pleaded guilty to possession of child pornography, which carries no mandatory sentence.

“When you have to sit there on the bench and look at someone like my stroke victim and say, ‘I have to send this man to prison for six years,’ it just doesn’t feel right,” he explained in an interview. “It’s not right.”

Child advocates like Ernie Allen, the president of the National Center for Missing and Exploited Children, are upset by such thinking. “Real children are harmed in the production of these images,” he said, “and these same children are harmed every time these images are downloaded and viewed.”

At 88, Judge Weinstein is one of the longest serving members of the federal bench. Supporters praise his taking unusual actions in pursuit of his notions of justice, like for a time refusing to handle drug cases out of opposition to mandatory minimums. Critics say that in the process, he disregards the law.

(On Thursday, he made headlines by refusing to dismiss a lawsuit by a public school teacher removed from the classroom for allowing students to use vulgarities during a lesson on H.I.V. He ruled that she appeared to have followed the spirit of a state syllabus that directed that students be encouraged to use sexual terms they understood.)

“Jack is somebody who will step out and do what he thinks is right and take his chances of being overturned by an appeals court,” said John S. Martin, who cited his disagreement with mandatory sentences when he retired from the federal bench in Manhattan. “He sees the injustice in these things, and he tries to do something about it.”

Both sides point to his efforts in the Polizzi case as quintessential Weinstein.

In 2005, Mr. Polizzi signed up for a child pornography Web site. He began obsessively stockpiling thousands of images, mostly of prepubescent girls. When F.B.I. agents arrived with a search warrant, he led them to the two-story garage where he kept his collection behind locked doors, saying, “The pictures of the children are upstairs.”

Child pornography cases almost always end with guilty pleas. But when the case was assigned to Judge Weinstein, Mr. Polizzi’s lawyer recommended that he go to trial. The lawyer used an insanity defense, claiming Mr. Polizzi had been repeatedly raped as a child and had collected the pictures not for sexual gratification, but in hopes of finding evidence of his own abuse — claims the prosecution dismissed as implausible. When the first of the images were shown in court, Mr. Polizzi collapsed and was taken to a hospital.

The jury was given the standard instruction not to consider possible punishment during deliberations. After three days, on Oct. 5, 2007, Mr. Polizzi was convicted of all 12 counts of receipt of child pornography and 11 counts of possession. Then Judge Weinstein broke from the script with a question almost never posed in court: If the jurors had known about the minimum prison sentence, would they have voted to convict?

Five jurors spoke up against imprisonment. Two said they would have changed their votes. Judge Weinstein tossed out the guilty verdict on the more serious receipt counts and ordered a new trial. He sentenced Mr. Polizzi to a year in prison for the possession counts, which Mr. Polizzi has served.

Judge Weinstein declared that Mr. Polizzi had a constitutional right to have a jury know the punishment that would accompany a guilty verdict, a right he said he had violated. He pledged to inform the next jury of the mandatory minimum sentence. That idea, floated by a federal judge in Manhattan several years earlier in another child pornography case but rejected on appeal, would give jurors the option of refusing to convict if the punishment seemed disproportionate, as several jurors had indicated they believed it was in Mr. Polizzi’s case.

“That was quite an unusual way of handling it,” said Amy Baron-Evans, the national sentencing resource counsel for the federal public defenders’ office. “Usually the judges are just stuck with the mandatory minimum.”

The Court of Appeals last year overruled Judge Weinstein’s order of a new trial, but left unresolved whether it was permissible to tell the jury about the punishment. The case was remanded, and Judge Weinstein, after consulting with other District Court judges, again ordered a new trial, though this time on different grounds. And again he pledged to inform the jury of the mandatory minimum sentences. That decision is under appeal.

In the meantime, the cases keep coming.

On Wednesday, Judge Weinstein dealt with a man who had pleaded guilty to receipt of child pornography. He imposed the mandatory five-year minimum prison term, though unhappily.

“This is an unnecessarily harsh and cruel sentence under the circumstances,” he said. “The court has no alternative under the statute. This defendant requires treatment and a stable life outside of prison. Prison will only harm him and will do nothing to protect society, since he does not constitute a risk of crime or any acting out towards children.”

“I’m sorry,” he added, “there is nothing I can do in this case.” ..Source.. by A.G. Sulzberger

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Federal judges argue for reduced sentences for child-porn convicts

11-29-2009 National:

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

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Sentences for Possession of Child Porn May Be Too High, Judges Say

9-12-2009 National:

Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.

"This is an area that requires the commission's close consideration and possible corrective action," Rosen told the panel, adding, "I know it's an awkward area for all of us."

In response, Commissioner Beryl Howell said that the issue "is on our priority list for the coming year." The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years.

The commission is holding a series of regional hearings in conjunction with the 25th anniversary of the Sentencing Reform Act, which established the commission, to get feedback from judges, prosecutors, probation officers, public-interest lawyers, public defenders and others on federal sentencing practices. The Chicago hearing is the commission's fourth, after forums in Atlanta, Stanford, Calif., and New York. Additional hearings will take place in Denver next month; Austin, Texas, in November; and Phoenix in January.

Much of the discussion is centering on the impact of the 2005 Supreme Court decision in United States v. Booker, which made the federal sentencing guidelines advisory as opposed to mandatory.

"I'm of the view that in many instances the sentences are simply too long," Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession.

Rosen emphasized that he doesn't condone possession of child pornography or understand it, but focused on the unfairness of treating one person sitting in his basement receiving videos over the Internet the same as a commercial purveyor of child pornography. In some cases, a person who has watched one video gets a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said. The average sentence for possession of child pornography in his district more than doubled, from about 50 months to 109 months, between 2002 and 2007, he said.

Factors that the judges must take into consideration in these cases, such as using a computer or engaging in file-sharing over the Internet, are inappropriately ratcheting up sentences, Rosen said. He suggested that the commission might want to take into account the volume of material in a case while making allowances for technology that may dramatically increase that volume.

7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence.

"One wonders if we aren't facing some unreasonable and unjustifiable disparities," Easterbrook told the panel.

U.S. Attorney Patrick Fitzgerald, who oversees the Northern District of Illinois, will testify tomorrow that there "seems to be a striking dissonance" between judges and prosecutors in sentencing for child pornography and exploitation cases, according to his prepared remarks.

"Without taking an advocate's view on why it is so, it is plain as day there is a deep disconnect," he said in the remarks, which were distributed early by the sentencing panel. "I respectfully suggest that this is an area of sentencing that warrants further study and further education of all involved."

The Booker decision has "aggravated the situation concerning child pornography," Fitzgerald said in his prepared remarks. While mandatory minimum sentences in that area "are certainly strict," prosecutors may be reluctant to seek lower sentences when they expect, based on past experience, that judges will reduce whatever sentences they recommend, he said. ..Source.. by Lynne Marek

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