another judge gets it

A federal judge in Ohio shows mercy by refusing to sentence a defendant according to the sentencing guidelines. Twice.

Appalled at the harsh sentencing guidelines for child pornography offenses, a federal judge sentenced an ailing, 67-year-old defendant to only one night in jail — and when an appeals court ordered the defendant resentenced, the judge imposed the same punishment. 

“If I have got to send somebody like [this man] to prison, I’m sorry, someone else will have to do it,” said U.S. District Judge James L. Graham of Columbus, Ohio. “I’m not going to do it.” ...

The unusual act of judicial disobedience by Graham — who was appointed to the bench 27 years ago by President Ronald Reagan — is the latest protest of sentencing rules for pornography possession, which other federal judges have described in opinions as “irrational” and “bordering on witch hunts.” 

...Graham declared the guidelines were seriously flawed because, among other things, they require an enhanced sentence if a computer is used — even though, as Graham pointed out, a computer is nearly always used.

As far as I can tell, the defendant is pleading guilty to possession, a charge that does not carry a mandatory minimum. Sentencing guidelines are advisory, not mandatory.

The defendant has already had two strokes and his wife is in poor health. The judge said he worried that the defendant wouldn't get sufficient health care in prison. In another article, the prosecutors blithely brush aside those concerns:

The 6th Circuit pointed out that prisons have doctors and that [the defendant] has four adult children living near him who could help take care of his wife.

The prison where my husband is incarcerated has no doctor on staff. I do not know if that is usual.

“We’re not of a belief that someone should get a senior discount because of their age,” said Fred Alverson, a spokesman with the U.S. Attorney’s Office.

Well, that's certainly true. Federal prosecutors have been busy putting elderly people in prison and keeping others there until they are elderly--the majority of them for non-violent crimes.

The population of aging and elderly prisoners in U.S. prisons exploded over the past three decades, with nearly 125,000 inmates aged 55 or older now behind bars, according to a report published Wednesday by the American Civil Liberties Union. This represents an increase of over 1,300 percent since the early 1980s. 

More than $16 billion is spent annually by states and the federal government to incarcerate elderly prisoners, despite ample evidence that most prisoners over age 50 pose little or no threat to public safety, the report said. Due largely to higher health care costs, prisoners aged 50 and older cost around $68,000 a year to incarcerate, compared to $34,000 per year for the average prisoner. 

The feds want to put this man in prison, putting his health and that of his wife at risk, and they want taxpayers to pay the increased cost of incarcerating an elderly man in poor health. Why?

In the article linked above, the prosecutors explain that

...he was participating in a global market with millions of members that “constantly demands that more children be abused in order to create new images.” 

“Child pornography images themselves are their own currency,” prosecutors wrote. “Possessors are the engine of demand that fuels the molestation of children to create more supply.”

Note that prosecutors do not have to prove these assertions. They don't have to prove that this man's online activities demanded new images or that he wanted more children to be molested. They are allowed to make broad accusations about a general practice of looking at child pornography as if it naturally applies to everyone charged with possession. No one challenges them.

Welcome, Judge Graham, to the ranks of those who recognize that sentences for child porn users are not proportionate to the crime. There is probably a large number of judges in that group. If only more of them would stand up and publicly acknowledge the wrongs done to those who look at pictures.

Bordering on witch hunts, indeed.