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JUDGE BLASTS PORN SENTENCING GUIDELINES
Shawn Cheever is the kind of guy who gives Wastrel P. Gravesite a bad name. He had a petty criminal record as long as Reed Richard’s arm, includes 11 prior felony convictions for forgery, fraud, assault, drug possession, and criminal impersonation. He was known to have used at least seven different aliases. At age 45, he has been sentenced many times to halfway houses and probation, and in all but one instance failed to conform to the rules and ended up in jail or prison. Twice, he was given a deferred conviction, and twice the deferrals were revoked and he was convicted.
Finally, the Feds caught up to him, nailing him for possession of child porn. Like over nine out of ten defendants, he entered a guilty plea to a mandatory 10 year sentence. So far, pretty typical, and anyone can see where this is headed. The sentencing judge is going to hammer this mutt, right?
If that’s all that Senior District Court Judge John Kane had done, there would be nothing to write about, because defendants being hammered in federal court – especially child porn defendants – happens on a daily basis. But instead, Judge Kane issued a 40-page sentencing opinion arguing that the sentencing guidelines for child pornography possession cases are greater than necessary, and not based on studies, statistics, or other bases to explain or justify why the mandatory minimum of 10 years was enacted or whether any other term was considered.
The Judge complained that a sentence of five years — “if permitted” — would allow Shawn to participate in BOP programs that would ensure his safe release with a minimal risk of recidivism.
Judge Kane wrote that “punishment is an unpleasant subject and its efficacy in many cases is questionable. Nevertheless, punishment is an integral part of the sentencing constellation. The noted English jurist, Lord Justice Denning, called punishment “the emphatic denunciation by the community of a crime.” When imposed in public with stated reasons expressed, punishment reinforces the community’s respect and declaration of its moral and legal standards and for that reason is justifiable. When imposed, however, in secret or without rational justifications, it becomes more mocked than feared. As stated by Thomas Jefferson, ‘[I]f the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed’.”
“Arbitrary punishments,” the Judge continued, “are just that and serve little, if any, positive purpose. Even the utilitarian assertion that punishment serves a positive purpose is mitigated by its proviso that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order. Ironically, the revulsion widely felt about crimes involving child pornography is exacerbated by the utter lack of empathy shown to the child victims by the offenders. That callousness alone is a factor that increases the proportional measure for punishment.”
The Judge noted that the collateral consequences of the sentence extend far beyond the end of the prison term. “Once released, a prisoner in the United States is frequently barred from the very aspects of law-abiding citizenship that rehabilitation and reform are intended to achieve. A released prisoner is frequently denied the right to vote, the right to sit as a juror and the right to participate in or hold elective office. The released prisoner is barred from numerous entitlements such as public housing, pensions, disability benefits, and perhaps schooling, food and health care. Some public employment is barred and employment in the private sector is exceedingly difficult to obtain. Some companies involved in contracts with the government are likewise prohibited from employing convicted felons. Most released offenders do not receive any assistance in gaining employment or subvention until a legitimate income is received. Small wonder that recidivism is the rule rather than the exception.”
Judge Kane is one of a small but growing cadre of jurists that have denounced child pornography sentences as being unduly severe and unrooted in logic. Last February, we reported on E.D.N.Y. Judge Jack Weinstein sentencing a similar defendant to 5 days in jail in United States v. R.V., Case No. 14-CR-0316 (E.D.N.Y., Jan. 22, 2016). Others have done so, too, but the trend is years away from being a tsunami.
United States v. Cheever, Case No. 15-cr-00031-JLK (D. Colo. Jul 18, 2016)