Few at most will feel any sympathy for the defendant in United States v. Walters, a child pornography case. But consider the following:
Walters downloaded a group of photos from the large inventory of child porn photos on the Internet. He is not a pedophile. He has not physically abused anyone. He is a young man with a wife and children whom he has not abused. He did not, in fact, past the photos onto anyone else; and he did not, in fact, have anything to do with their production. He paid nothing to download the photos. He did not enter the commercial market for child porn.
What he did is to look at photos that we would find disgusting and criminally produced. For someone to presumably enjoyed looking at them offends us, although we do not know his state of mind for it is a strict liability crime. To assert, however, that the defendants "caused" the production of the photos fabricates "causation." It is a rationalization arising from our discussed and disapproval.
Walters' sentence was 12 years, 7 months (151 months) in accordance with sentencing guidelines that it appears have been condemned by everyone but Congress:
Many of the groups of officials and experts who have looked into the problem of Internet child porn have reached the conclusion that the sentencing guidelines that the District Court and our Court have now enforced in this case should be greatly reduced. Most importantly, these groups include the sentencing commission itself, which has conducted an extensive study and then issued a 350 page Report in 2012 entitled "Federal Child Pornography Offenses." The Report asks Congress to remove the harsh Protect Act provisions that ordered the Sentencing Commission in 2003 to write guidelines recommending to judges the imposition of sentences such as the 12-plus year sentence in this case. The report is based in part on the refusal of a sizable majority of judges to follow the guidelines and the opinion of experts in the field, including psychologists, medical experts and legal scholars who have studied the problem. The Commission's study arrived at the conclusion that the present child porn guidelines have "no rational basis," are "outmoded," not "distinguish adequately among offenders based on their degrees of culpability," and have "enhancements," like the ones in this case, that are "outmoded and disproportionate." The disagreement with the guidelines for nonproduction offenders is widespread. The Report at page xxi concludes in part:
Numerous stakeholders – including the Department of Justice, the Federal Defender community, and the Criminal Law Committee of the Judicial Conference of the United States – have urged the Commission and Congress to revise the nonproduction sentencing scheme to better reflect the growing body of knowledge about offense and offender characteristics and to better account for offenders' varying degrees of culpability and dangerousness.
Unfortunately, the Department of Justice has not adequately communicated its position to its United States Attorneys, and so we keep getting cases like this one.
It seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts – unless the courts themselves find a solution that at least ameliorate the problem for the time being.
The foregoing appears in the dissenting opinion of Senior Circuit Judge Gilbert Merritt, who has served -- and served with great distinction -- on the Sixth Circuit since 1977. That a federal appeals judge of this tenure and distinction would refer to injustices going on every day in the federal courts is more than a little disturbing.
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