In Brooklyn, a man plead guilty to possession of child porn. Federal guidelines recommended a 6.5 to 8 year prison sentence. The judge sentenced him to five days.
U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.Ninety-eight pages! This judge wants to be understood.
"Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials.Not the interests of retribution or the interests of disgust and fear, but the interests of justice.
"It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."The judge recognizes something important: the defendant's five children would be at risk if their father went to prison, he would not get needed treatment in prison, and the man is not a danger to society.
The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."Protecting juveniles includes the defendant's kids as well as kids who sext. Kids who sext, as foolish as they might be, should not be considered producers of child pornography nor do they deserve the long sentences called for in the guidelines.
...Weinstein thought [6.5 to 8 years] was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough.Seven years of court supervision may not be prison but it is not a light sentence by any means.
The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.More and more people seek out pornography because it is so easily--and so privately!--available on the Internet. Mandatory reporting laws make certain that those who want help to stop looking at child porn have no sure way to get help without being turned in to law enforcement.
Those who favor tougher sentences point out that while many consumers of child pornography may not never [sic] lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children.Yes, some do. Why not punish them for what they did instead of punishing all child porn downloaders as if they did?
"The viewing has a market-creation effect," Cassel said. "It ends up leading inexorably to the rape of children."Again, those who rape anyone, adult or child, ought to be punished for rape. Someone who commissions a sexual assault against anyone, adult or child, should be punished.
Those who look at a video of a crime should not be punished for a crime already committed by someone else or for a crime yet to be committed by someone else.
Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure.The entire sentencing structure is built around the idea that every child porn case is the same and every child porn viewer is the same. The particulars of each case ought to matter.
Because those who create vile child porn are so difficult to find and prosecute, the criminal justice system comes down hardest on those who are easiest to find.
Punishment by proxy.
Judge Weinstein has long opposed the lengthy sentences recommended for child porn offenses.