JACK B. WEINSTEIN, Senior United States District Judge:
I. INTRODUCTION ... 209
A. Varying Degrees of Culpability of Child Pornography Offenders ... 209
B. Consistency in Sentencing ... 212
C. Defendant in Instant Case ... 212
II. FACTS AND PROCEDURAL HISTORY ... 212
A. Background ... 212
B. Sexual History ... 213
C. Child Pornography ... 214
D. Arrest ... 214
E. Mental Health Treatment ... 215
F. Administration for Children Services... 216
G. Guilty Plea ... 216
III. EXPERTS ... 217
A. Medical ... 217
1. Credentials ... 217
2. Methodology and Diagnosis ... 218
3. Findings ... 218
4. Recommendation for Sentence... 222
B. Social Worker ... 223
C. Family ... 224
IV. SENTENCE IMPOSED ... 224
V. SENTENCING CONTEXT ... 224
A. Shifting Societal Norms ... 224
B. Changing Technological Landscape... 225
1. Personal Computer Revolution ... 225
2. Internet Revolution ... 226
C. How Internet Revolution Enabled Child Pornography Consumption ... 231
D. Connection between Child Pornography Consumers and Child Molesters ... 237
E. Child Pornography's Continued Harm to Children ... 241
VI. SENTENCING LAW ... 249
A. Discretion of Sentencing Judge in Determining Appropriate Punishment... 249
B. Applicable Statute ... 249
C. Advisory Nature of the Sentencing Guidelines ... 250
D. Restitution ... 253
VII. APPLICATION OF LAW TO FACTS ... 254
A. Guidelines Sentencing Range ... 254
B. Analysis of Section 3553(a) Factors ... 254
6. Restitution ... 265
C. Policy Considerations ... 265
VIII. CONCLUSION ... 267
This adult defendant viewed child pornography in his home on his computer. He also participated in electronic "chat room" sexual conversations with minor females. His sentencing demands consideration of the manifold relevant differences among child pornography offenders.
Under the federal criminal code, child pornography viewing through computers is a serious felony. The theory is that (1) computer depiction of children being sexually exploited creates a permanent widespread record of abuse, perpetuating and potentially exacerbating the harm initially suffered by the victim in the production, and (2) acquisition of these images encourages abuse of children in their production since viewers create demand.
Prosecution under the current sentencing framework has largely failed to distinguish among child pornography offenders with differing levels of culpability and danger to the community. The applicable structure does not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment, with resulting unnecessary cost to defendants' families and the community, and the needless destruction of defendants' lives.
One of the foundational rules of our criminal justice system is that punishment should be commensurate with the crime — its threat to society. The need to tailor sentences to the dangers and needs of the individual being sentenced (and his family and community) are also foundational. Proportionality in sentencing encourages a fair system. Increasingly, judges, prosecutors, advocates and concerned citizens have recognized that the current sentencing approach to child pornography offenders
Child pornography offenders can be broadly divided into two main categories: those who produce child pornography and those who are viewers of child pornography. By definition, producers of child pornography are child molesters, frequently representing the worst and most dangerous type of offender. Non-production offenders, by contrast, encompass a wide range of individuals with varying degrees of culpability. They include occasional viewers with no particular sexual interest in children as compared to adults; viewers with pedophilic tendencies who are aroused by images of minors but do not possess the intent or capacity to engage in any sexual contact with a minor; users of peer-to-peer files who passively and unintentionally distribute child pornography received on their computers; viewers who intentionally engage in the trafficking of child pornography for economic or psychic gain; and viewers who have, intend to, or are likely to, engage in sexual contact with a minor — i.e., actual or potential child molesters.
Child pornography viewing is played out against a primal parental fear of pedophiles harming their children. While there is a degree of overlap between child pornography viewers and child molesters, most non-production child pornography offenders — and particularly the one now before the court for sentencing — show no mens rea suggesting the likelihood of future harm to children.
The Internet revolution has vastly increased the availability and accessibility of child pornography online, greatly expanding the category of people arrested for possession and distribution offenses involving explicit sexual images of minors obtained through home computers using various peer-to peer file sharing programs. As a result there has been an enormous increase in this criminal class, governmental resources used to ferret out its members, criminal prosecutions, and incarcerations.
Prosecutions and sentencing should differentiate among offenders' varying degrees of culpability. Failure to distinguish among the multitude of vectors involved in a sentencing decision is particularly grave in the field of child pornography offenses. To be adjudicated guilty necessarily results in denomination as a sex offender; automatically provided is a lifetime of continuous punishment — being marked as a pariah with severe restrictions on residence, movements, activities and associations. Adding unnecessary, unduly long, periods of incarceration is inappropriate and it should be avoided.
In order to deliver reasonable sentences for child pornography offenses, a detailed recategorization and typology of offenders is warranted. The divisions below offer a tentative illustration of one possible taxonomy. Each category implies different mental states, which need to be considered when tailoring appropriate punishment and measures for control.
While the current Guidelines for child pornography offenses appear to recognize most of these broad categories, several of the Commission's relevant sentencing enhancements tend to apply indiscriminately to all child pornography offenders, greatly increasing the recommended punishment range without necessarily reflecting an individual's heightened level of culpability. See U.S. Sentencing Comm'n, Federal Child Pornography Offenses (Dec.2012), at 320-21 (recognizing that "[t]he current sentencing scheme ... places a disproportionate emphasis on outmoded measures of culpability regarding offenders' collections," and recommending that the Guidelines be revised to "more fully account" for: the content of an offender's child pornography collection and nature of his collecting behavior; the degree of the offender's
This court has been attempting to rationalize its own sentences by establishing general criteria for `similar' cases, a project required by the wide discretion in sentencing afforded under Booker. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Chin Chong, 13-CR-570, 2014 WL 4773978 (E.D.N.Y. Sept. 24, 2014) (accounting for prospect of deportation when imposing a term of incarceration); United States v. Sarpong, 14-CR-242, 2014 WL 5363775, at *2 (E.D.N.Y. Oct. 21, 2014) (same); United States v. Palagnachy, 14-CR-0184, 2014 WL 6606668, at *2 (E.D.N.Y. Nov. 19, 2014) (same); United States v. Florez Parra, 14-CR-332, 2015 WL 105885, at *2 (E.D.N.Y. Jan. 7, 2015) (same); see also United States v. Bannister, 786 F.Supp.2d 617, 688 (E.D.N.Y.2011) (sentencing nine defendants together for internal consistency and reassurance to community); United States v. C.R., 972 F.Supp.2d 457, 459 (E.D.N.Y.2013) (problems with enforcing statutory minimums); United States v. D.M., 942 F.Supp.2d 327 (E.D.N.Y.2013) (sentencing defendant who pled guilty to one count of possession of child pornography to five years' probation); United States v. G.L., 305 F.R.D. 47 (E.D.N.Y.2015) ("With the increase in sentencing discretion and concern over unnecessarily long incarcerations has come an increased need for each judge to try to avoid inconsistency in his or her own sentences. Stating reasons for sentencing in memoranda helps minimize both dangers.").
Defendant R.V., a loving father of two adult children and three school-age children, pled guilty to one count of a five-count indictment for possession of child pornography. Over a period of about one year, defendant downloaded child pornography in the privacy of his home without the knowledge of his wife or children. Defendant also engaged in video chats with minor females.
No evidence was presented of defendant ever having had inappropriate physical sexual contact with a minor. Expert testimony demonstrated that defendant poses no further danger to his or other children. In light of his children's and spouse's demonstrated need for his presence at home, imposed was a sentence of time-served of five days, and seven years of strict supervised release with medical treatment. Levied was: a fine of $12,500; $2,000 in victim's restitution; and a $100 special assessment.
The parties stipulated that the defendant should be referred to as "R.V." to enhance rehabilitation and reduce adverse impact on the family. See Hr'g Tr., Apr. 30, 2015 ("Sent.Hr'g") at 27:17-28:1.
R.V., age 52, is a United States citizen and resident of Brooklyn, New York. Presentence Investigation Report, Oct. 17, 2014 ("PSR"), at 2.
Born in Puerto Rico, he grew up in humble circumstances. His father was a farmer; his mother, a homemaker. Id. at ¶ 39. Though most of his fourteen siblings were already grown up and living out of the home when R.V. was a child, he shares close relationships with his surviving eleven brothers and sisters who live in North Carolina. Id. at ¶ 40.
At age three or four, R.V. and his family immigrated to New York. Richard B.
At age eighteen, defendant began to use marijuana. Krueger Letter at 2. He subsequently moved to cocaine and then to heroin. Id. He entered an inpatient treatment program, but relapsed. Id. at ¶ 51.
In 1991, at age 29, R.V. pled guilty to charges of attempting to sell cocaine. Id. at ¶¶ 31-32. He entered a drug treatment program and was released on parole. Id. at ¶ 51; Krueger Letter at 3. After a positive urine test for controlled substances, he was incarcerated for violation of parole, during which time he completed another drug treatment program. PSR at ¶ 51; Krueger Letter at 3. Following his release, R.V. was transferred to a Phoenix House inpatient treatment program for three months where he successfully completed another drug treatment program. PSR at ¶ 51. He reports that he has been sober since May 1, 1995; over 20 years. Id. at ¶ 50; Krueger Letter at 3.
In 2000, at age 38, the defendant married his current wife, then age 21. PSR at ¶ 9; Krueger Letter at 3. The couple subsequently had three children: a son (age 15), a daughter (age 12), and a daughter (age 10). PSR at ¶ 42. His son, after homeschooling, recently enrolled in public school; his two young daughters remain homeschooled by defendant's wife, who holds a college degree. Id.; Krueger Letter at 5. Defendant refers to his marriage as "great." Krueger Letter at 5. His wife describes him as a wonderful husband and father, who cooks for the family almost every night. PSR at ¶ 44.
Defendant also has two adult daughters (ages 24 and 26) from a previous unmarried relationship; they live in upstate New York. Id. at ¶ 43.
Following his arrest in the instant case, defendant was required to live separately from his family. Id. at ¶ 45; Krueger Letter at 3. He was permitted to return home after completion of an investigation by the New York Administration for Children Services ("ACS"). ACS found that none of R.V.'s children had been abused by him. PSR at ¶ 45.
Both of R.V.'s parents died from health-related problems. Id. at ¶ 39. Each of his surviving eleven siblings is gainfully employed and enjoys good health. Id. at ¶ 40. Each maintains a close relationship with R.V. and continues to remain supportive following his arrest. Id.
R.V. has worked in a variety of restaurants: as an assistant manager of a restaurant chain's warehouse; and, for the last five years, as a production manager of another restaurant chain, where he supervised approximately 20 people and earned some $75,000 a year. His employment was terminated upon his arrest in the instant case. Id. at ¶¶ 54-55; Krueger Letter at 1.
At the time of sentencing, he was employed by a bakery in Long Island City. Hr'g Tr., Apr. 1, 2015, at 16:20-17:2.
Defendant's first "crush" occurred at age 15, on a 15-year-old female. Krueger Letter at 5. He went on his first "date" at age 18 with an 18-year-old female. Id. His first non-genital touching, or petting, occurred at age 19 with a 19-year-old female. Id. Defendant's first genital sexual encounter occurred at age 19 with the mother, also then 19 years old, of his oldest two children. Id.
The defendant has viewed adult pornography intermittently for many years on his home computer in private, downloading and masturbating to such images. Id. at 3-4. For the year prior to his arrest, he viewed and masturbated to images and videos on his computer of girls aged 11 to 12 years old. PSR at ¶¶ 5-7.
Defendant admitted to agents from the Department of Homeland Security, who executed a search warrant of his home, that he used peer-to-peer electronic file-sharing software to search, obtain, and view child pornography. Id. at ¶ 7. After viewing the images or videos, he would either delete the files from his computer or he would move them to "free space" on his computer. Id.
He used peer-to-peer software to engage in video conversations with minor females using web applications "KiK" and "Ares." Id. at ¶ 8. In "chat rooms," he posed as a teenage boy between the ages of 14 to 17 to engage girls in a "sexual manner." Id. He also admitted to occasionally watching and recording chat rooms in which minor females were performing sexual acts. Id.
On December 20, 2013, a Homeland Security Investigations agent, engaged in an ongoing investigation, connected to R.V.'s home computer. Id. at ¶ 5. The agent downloaded four files:
Id.
On May 1, 2014, agents from the Department of Homeland Security, executing a search warrant at R.V.'s home, located three separate thumb drives that defendant admitted belonged to him. Id. at ¶¶ 6-7. Most of the files found on the thumb drives were password protected, but agents were able to recover nine images and twenty-two videos depicting child pornography. Id.
On May 2, 2014, R.V. was arrested for possession of child pornography. R.V.'s three youngest children and his wife were all residing at their home when he was arrested. Id. at ¶ 9. He was in jail for five days before he was released on bail. Order of Detention, May 2, 2014, ECF No. 3; Order Setting Conditions of Release, May 7, 2014, ECF No. 8 (sealed). Charged was that, on May 2, 2014, R.V. knowingly and intentionally possessed images of child pornography that were mailed, shipped, or transported in interstate or foreign commerce. See 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2).
After release on bail R.V. was treated by Mustard Seed Forensic Social Work Services ("Mustard Seed"), which provides sex offenders with treatments aimed at "the reduction of deviant sexual behavior and recidivism." Mustard Seed Forensic Licensed Clinical Social Work Services, P.C., http://www.mustardseedforensic.com/msmission.html. Since its inception, Mustard Seed has treated over 3,000 sex offenders. Mustard Seed Client Compliance Report, Ct. Ex. 2, April 1, 2015, at 1.
Provided to the court was a report by William C. Ford, a licensed clinical social worker and executive director and co-founder of Mustard Seed. Id.; Credentials of William C. Ford, Ct. Ex. 3, Apr. 1, 2015. Dr. Ford is a member of the National Association of Social Workers, and the Association for the Advancement of Social Work with Groups; a board member of Stop It Now!, a "national organization dedicated to ending child abuse;" and former member of the New York City Department of Probation's Domestic Violence and Sexual Assault Task Force. Id. During Ford's fifteen-year professional career, he has treated approximately 3,500 sex offenders. Id.
Dr. Ford spoke directly about R.V.'s participation in treatment and his potential for relapse. Recidivism was unlikely if adequate medical treatment was afforded:
Mustard Seed Client Compliance Report, April 1, 2015, Ct. Ex. 2, at 3 (emphasis added). Emphasized was that R.V. was actively engaging in treatment:
Id. (emphasis added).
After R.V.'s arrest, the Administration for Children Services ("ACS") of New York filed an Article 10 petition in the Kings County Family Court to protect his children; it opened an investigation into whether R.V. had abused them or posed a danger to them. See Sent. Mem., April 9, 2015, ECF No. 43 (sealed), at 1-2, Ex. A. ACS found no evidence of abuse; R.V. was permitted to return home to reside with his family on August 29, 2014. PSR at ¶ 11; Sent. Mem., April 9, 2015, ECF No. 43 (sealed), at 1, Ex. D; Hr'g Tr., Apr. 1, 2015, 94:18-20. The record from the Family Court was admitted in evidence under seal. See Sent. Mem., April 9, 2015, ECF No. 43 (sealed). There have been no reported violations; the petition was dismissed by the Family Court on May 6, 2015. Letter update as to [R.V.], June 10, 2015, ECF No. 51 (sealed).
Beginning with his initial release from custody on May 7, 2014 until sentencing on April 30, 2015, Pre-Trial Services closely monitored defendant. See Order Setting Conditions of Release, May 7, 2014, ECF No. 8 (sealed). The conditions of supervision included the following: defendant must remain within New York City; he must avoid areas where minors under the age of 18 tend to congregate, including but not limited to, parks, playgrounds, fast food restaurants near schools and arcades; he must undergo mental health evaluation and treatment as needed for the specific offense charged; and he must refrain from using a computer or accessing the Internet, except as may be necessary for employment purposes only. Id.
On August 26, 2014, the defendant appeared before a magistrate judge and pled guilty to one count of a five-count indictment. See Hr'g Tr., Aug. 26, 2014, ECF No. 29, at 23:22-24:2. Specifically, defendant pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), which provides as follows:
18 U.S.C. § 2252(a)(4)(B) (2012). The maximum term of imprisonment for this crime is twenty years. See 18 U.S.C.
Defendant raised no constitutional or other challenge to the procedures by which the evidence was obtained. See generally Hr'g Tr., Aug. 26, 2014, ECF No. 29. It was explained to defendant that a mandatory supervised release term of five years was applicable. Id. at 13:9-12. He understood that he would be treated as a sexual offender under state and federal law with serious adverse long term collateral consequences. Id. at 18:25-19:7.
Evidentiary sentencing hearings were conducted on April 1 and April 30, 2015. See ECF Nos. 48-49.
Dr. Richard B. Krueger, a psychiatrist who specializes in paraphilic disorders, evaluated the defendant in a four-hour interview on June 23, 2014. Hr'g Tr., Apr. 1, 2015, at 38:16-41:23. He took a detailed history of defendant's personal and family background, which included a stable upbringing, some financial struggles, and substance abuse. Id. at 42:12-43:3, 44:18-45:4; see generally Krueger Letter.
Dr. Krueger wrote an expert report and testified twice. See generally Krueger Letter; Hr'g Tr., Apr. 1, 2015; Sent. Hr'g. He also reviewed a list of materials that this court advised it was considering in sentencing. See Order, April 29, 2015, ECF No. 46; Sent. Hr'g, at 15:19-21, 19:7-14. Dr. Krueger suggested that the court consider three additional sources: Martin P. Kafka, Hypersexual Disorder: A Proposed Diagnosis of DSM-V, 39 Archives of Sexual Behavior 377-400 (2010) (discussing the proposed revision of the DSM-V to include hypersexual disorder); Meg S. Kaplan & Richard B. Krueger, Diagnosis, Assessment, and Treatment of Hypersexuality, 47 Journal of Sex Research 181 (2010) (discussing the current standard for diagnosis, assessment, and treatment of hypersexual disorder); Richard B. Krueger, Meg S. Kaplan & Michael B. First, Sexual and Other Axis I Diagnoses of 60 Males Arrested for Crimes Against Children Involving the Internet, 14 CNS Spectrums 623 (2009) (discussing the newly suggested category of hypersexual disorder as the sexual diagnoses of 60 males arrested for possession of child pornography obtained via the Internet or attempting to meet a child over the Internet). Sent. Hr'g, at 19:11-20:5.
Dr. Krueger graduated from Harvard Medical School in 1977. Hr'g Tr., Apr. 1, 2015, at 38:20-21. His experience in assessing paraphilic disorders began in the mid-1980's, while working at the Massachusetts Treatment Center in the Bridgewater Correctional Complex, where he assessed approximately one hundred individuals civilly committed for sexual violence. Id. at 39:9-15. For the past twenty years, he has served as the medical director of the Sexual Behavior Clinic at New York Psychiatric Institute in New York City. Id. at 39:20-22. As director, he runs the psychobehavior clinic, which assesses juvenile sex offenders. Id. at 40:3-7. He also is a consultant to the New York State Office of Mental Health, where he assesses and treats sex offenders. Id. at 40:8-13. The doctor is currently engaged in helping rewrite the Paraphilic Disorder chapter in the Diagnostic and Statistical Manual. Id. at 40:14-21.
On several occasions Dr. Krueger has been qualified as an expert on paraphilic disorders in the United States District Court for the Eastern District of New York. Id. at 41:17-23. He has testified on the risk assessment of sex offenders and
Dr. Krueger performed twenty-one tests to assess defendant's mental condition and sexual tendencies. Krueger Letter at 6-9. These tests were designed to explore pedophilic tendencies, other sexual interests, repulsions and attractions, mental illness, and risk assessment for sexual recidivism and sexual violence. Id.
The majority of the tests indicated that defendant:
The tests indicated that defendant's risk of sexually abusing his own children was "low" or "extremely low." Id. at 12; see also Hr'g Tr., Apr. 1, 2015, at 46:22-24 ("I applied a number of risk assessment instruments and these were low — his scores on these were lower, extremely low on these five instruments). Dr. Krueger also testified that the risk of R.V. abusing children other than his own was "remote." Id. at 47:10-14. In sum, Dr. Krueger provided the following diagnoses concerning the defendant:
Krueger Letter at 11.
Dr. Krueger testified to the defendant's transition from viewing adult pornography to child pornography, and the further progression to engaging in online chats with underage girls:
Hr'g Tr., Apr. 1, 2015, at 47:21-48:3. This expert also testified that, about the same time, defendant began chatting online with underage girls:
Id. at 48:17-51:5 (emphasis added).
Dr. Krueger testified that defendant's transition to watching child pornography "is not an unusual pattern." Id. at 80:22-23. He explained:
Id. at 80:23-81:5.
The internet age increased the volume and accessibility of child pornography:
Id. at 83:18-85:1.
According to Dr. Krueger, such easy access and increased availability of child pornography online could also affect the deterrent value of heavy sentences:
Id. at 91:20-92:10.
The expert noted there was no evidence that defendant had engaged in hands-on abuse of any child:
Krueger Letter at 12 (emphasis added).
Specifically, Dr, Krueger indicated that:
Id. at 46:18-24 (emphasis added); see also Krueger Letter at 11. With a "reasonable degree of medical certainty," the defendant could live at home without posing a danger to his children. Hr'g Tr., Apr. 1, 2015, at 54:24-25.
Id. at 63:16-63:18 (emphasis added); see also id. at 55:7-11.
The expert also testified that R.V. is not a threat to other children:
Id. at 63:19-22 (emphasis added); see also id. at 47:10-14.
The expert testified that in most cases involving viewers of child pornography the recidivism rate is low. Id. at 53:11-17. In this expert's opinion, this conclusion applied to defendant R.V. Id. at 53:19-21.
As noted above, Dr. Krueger's tests showed that defendant's risk of sexual violence and re-offense was "low" or "extremely low." Krueger Letter at 12; Hr'g Tr., April 1, 2015, at 46:22-24. Moreover, according to Dr. Krueger, R.V.'s recidivism risk would decrease further if he were allowed to continue treatment under federal supervision as part of a non-custodial sentence:
Hr'g Tr., Apr. 1, 2015, at 53:11-54:12 (emphasis added); see also Krueger Letter at 12 ("This risk would be reduced even further by participation in and completion of a sex offender specific program, and by the usual conditions of monitoring by federal probation in the community").
In recommending a non-incarceratory sentence, the expert testified to the significance of the ACS investigation in making the determination that R.V. posed no danger to his own children:
Hr'g Tr., Apr. 1, 2015, at 94:17-95:22 (emphasis added).
The expert noted that separating R.V. from his family would harm his children:
Krueger Letter at 12 (emphasis added); see also Hr'g Tr., Apr. 1, 2015, at 54:23-55:3.
Dr. Krueger also opined about R.V's response to Mustard Seed's treatment:
Hr'g Tr., Apr. 1, 2015, at 62:22-63:15.
Vivianne Guevara, Director of Client and Mitigation Services at the Federal Defenders of New York and a licensed social worker, conducted an assessment of R.V.'s family. Ms. Guevara submitted a written evaluation and testified on the state of R.V.'s family and R.V.'s contribution to his family. See R.V. Sent. Mem., Mar. 30, 2015, ECF No. 41 (sealed), at Ex. C ("Family Assessment"); Hr'g Tr., Apr. 1, 2015, at 5:20-37:4. In order to conduct her assessment, Ms. Guevara met with R.V. alone once and with R.V. and his family four times. Id. at 8:2-3. The last three meetings with R.V.'s family took place in R.V.'s home and lasted between one hour to one hour and a half each. Id. at 8:10-13.
Ms. Guevara testified that she observed "a very close-knit family who was very supportive of each other, the children even supportive of their own parents ... and parents that are very supportive of their children most of all, very interested in their children's success." Id. at 13:17-25. She noted that, while R.V.'s arrest in this case "could have potentially fragmented this family" it instead "created a new sense of value, and a bond created by a shared experience, from which they all hope to move forward." Family Assessment at 6.
Ms. Guevara spoke to the extent of R.V.'s critical contribution to his family unit:
Hr'g Tr., Apr. 1, 2015, at 14:16-18; 15:1-7 (emphasis added).
The social worker concluded that R.V.'s absence would have a negative impact on his family. Id. at 19:19-21 ("The children love their father they look to him for support and guidance and without him, they would be missing an important part of their lives[.]"). According to Ms. Guevara, R.V.'s continued presence in his home would benefit both his family as well as R.V.'s own treatment:
Family Assessment at 6.
On April 24, 2015 the court ordered that R.V.'s wife and children be present in person at R.V.'s sentencing hearing. Scheduling Order, Apr. 24, 2015, ECF No. 45.
The court observed and questioned defendant's children. There was a clear indication of a loving relationship among parents and children.
Defendant was sentenced on April 30, 2015. See Sent. Hr'g. Before sentencing, R.V. affirmed his guilty plea. Id. at 24:21-26:11.
The total Guidelines offense level is 28. The criminal history category is I, yielding a Guidelines imprisonment range of 78-97 months. U.S.S.G. Ch. 5 Pt. A; see also Sent. Hr'g, at 28:8-9.
Defendant was sentenced to time-served and seven years supervised release, with the requirement of intense continuing treatment. See Sent. Hr'g, at 37:17-24. The sentence represents a downward departure from the Guidelines. Defendant was ordered to pay $2,000 in restitution, a $12,500 fine and $100 special assessment. See id. at 24:9-11, 28:15-20.
The sentencing proceedings were videotaped to develop an accurate record of the courtroom atmosphere, as well as some of the subtle factors and considerations that a district court must consider in imposing a sentence. See In re Sentencing, 219 F.R.D. 262, 264-65 (E.D.N.Y.2004) (describing the value of video recording for possible review of sentences on appeal).
Views on what delineates the bounds of acceptable pornography have varied, as anyone is aware who visits the excavations of Herculaneum — long-buried by ashes from Mount Vesuvius — where ancient public pornography is preserved. The works of great Renaissance and early Impressionist artists immortalized the images of children as sexual objects. See Mass. v. Oakes, 491 U.S. 576, 593, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (Brennan, J., dissenting) ("Many of the world's greatest artists — Degas, Renoir, Donatello, to name but a few — have worked from models under 18 years of age....").
One need not look so far back to encounter different social mores. "[I]t was not until the 1880s that the age of consent in America was raised from ten years of age. Indeed the concept of an `in-between' period existing between childhood and adulthood, known as adolescence, did not develop until the early twentieth century." Michael J. Henzey, Going on the Offensive: A Comprehensive Overview of Internet Child Pornography Distribution and Aggressive Legal Action, 11 Appalachian J.L. 1, 3 (2011) (footnotes omitted). "[E]rotic accounts of adult-child sex were commonplace in nineteenth century literature; Victorian era photographs and prints of young teenagers and pre-pubescent children also existed." Id. (footnote omitted).
The advent of photography spurred the "production, collection and exchange of pornographic material depicting children" in the mid-nineteenth century. Jessica A. Ramirez, Propriety of Internet Restrictions for Sex Offenders Convicted of Possession of Child Pornography: Should We Protect Their Virtual Liberty at the Expense of the Safety of Our Children?, 12 Ave Maria L.Rev. 123, 125 (2014). By the
Henzey, supra, at 4-5 (footnotes omitted); see also Emily Weissler, Head Versus Heart: Applying Empirical Evidence About the Connection Between Child Pornography and Child Molestation to Probable Cause Analyses, 82 Fordham L.Rev. 1487, 1492 (2013) ("[I]n the 1960s, there was a general relaxation of censorship standards, and pornographic pictures and films of children became more widely available") (footnote omitted). But the late 1970s saw a shift in mindsets:
Id.
Photographic child pornography came in "formats like magazines, 16-millimeter movie film, Polaroid pictures ..." Gray Mateo, The New Face of Child Pornography: Digital Imaging Technology and the Law, 2008 U. Ill. J.L. Tech. & Pol'y 175, 178 (internal quotation marks and footnote omitted); see also Ramirez, supra, at 125 ("through most of the twentieth century... these images were usually produced at the local level, were costly and of poor quality, and were difficult to acquire") (footnote omitted); Eric Griffin-Shelley, Sex and Love Addicts, Who Sexually Offend: Two Cases of Online Use of Child Pornography, 21 Sexual Addiction & Compulsivity: The J. of Treatment & Prevention 322, 323 (2014) ("Mail or adult bookstores were the vehicles for finding child pornography prior to the 21st century."). Prior to the advent of the Internet, "production and duplication of [child pornography] required expensive equipment of the kind not normally found in the average home. To distribute images of child abuse, one had to either personally transport them or rely on a domestic mail carrier. Unsurprisingly, these challenges and risks may have served as barriers to offending for some persons who would have otherwise been inclined to obtain [child pornography]" Erik Faust, et al., Child Pornography Possessors and Child Contact Sex Offenders: A Multilevel Comparison of Demographic Characteristics and Rates of Recidivism, Sexual Abuse: A Journal of Research and Treatment (Feb. 19, 2014), http://sax.sagepub.com/content/early/2014/02/19/1079063214521469, at 2.
Efforts in the 1980s "to suppress the American child-porn trade — a small network of adult bookstores and mail-order services — were so successful that within a decade the market was all but nonexistent." Rachel Aviv, The Science of Sex Abuse: Is it Right to Imprison People for Heinous Crimes They Have Not Yet Committed?, The New Yorker, Jan. 14, 2013; Henzey, supra, at 4-5 ("By 1986, most of the traditional methods of distributing child pornography were shut down.").
The Internet revolution "undid those [control] achievements." Id.
The "personal computer revolution" was launched in 1976, with the introduction of
By 2014, eight in ten adults in the United States would report that "they use laptop and desktop computers somewhere in their lives — at home, work, school, or someplace else." Susannah Fox & Lee Rainie, The Web at 25 in the U.S., Part 1: How the Internet has Woven Itself into American Life, Pew Research Center (Feb. 27, 2014), http://www.pewinternet.org/2014/02/27/part-1-how-the-internet-has-woven-itself-into-american-life/. The following graphic represents this rapid increase:
Id.
Rogers, supra, at 1028 (footnotes omitted). Linking of computers allowed for the increasing
Id. at 1028-31 (footnotes omitted).
In 1995, just 14% of adults in the United States had Internet access. Fox & Rainie, supra (footnote omitted). In fact, only 42% of adults had even heard of the Internet, and "an additional 21% were vague on the concept — they knew it had something to do with computers and that was about it." Id. Less than two decades later, in January 2014, 87% of adults in the United States used the internet:
Pew Research Center, Internet User Demographics (Jan.2014) (showing the large percentage of the adult population in the United States using the internet in 2014), http://www.pewinternet.org/data-trend/internet-use/latest-stats; see also Berkson v. Gogo LLC, 97 F.Supp.3d 359, 377 (E.D.N.Y.2015) (same). At this point, there was "near-saturation usage among those living in households earning $75,000 or more (99%), young adults ages 18-29(97%), and those with college degrees (97%)." Susannah Fox & Lee Rainie, The Web at 25 in the U.S., Summary of Findings, Pew Research Center (Feb. 27, 2014), http://www.pewinternet.org/2014/02/27/theweb-at-25-in-the-u-s/.
The "rise of the internet changed the way that people got information and shared it with each other, affecting everything from users' basic social relationships to the way that they work, learn, and take care of themselves." Three Technology Revolutions, Pew Research Center, http://www.pewinternet.org/three-technology-revolutions/; see also Amanda Lenhart, Teens, Social Media & Technology Overview 2015, Pew Research Center (Apr. 9, 2015), http://www.pewinternet.org/2015/04/09/teens-social-media-technology-2015/. Today, "the Internet has become the most fundamental global communications and knowledge infrastructure of our age, and is fast becoming the basic data-and-control network of the coming decade." Yochai Benkler & David D. Clark, Introduction, 2016 Daedalus J. of the Am. Acad. of Arts & Scis. 5.
"The speed of internet connectivity picked up considerably with the rise of broadband connections. As people adopted ... higher-speed, always-on connections, they became different internet users: They spent more time online, performed more activities, watched more video, and themselves bec[a]me content creators." Three Technology Revolutions, Pew Research Center, supra, see also Dr. Raul Katz, The Impact of Broadband on the Economy: Research to Date and Policy Issues, ITU, (April 2012), https://www.itu.int/ITU-D/treg/broadband/ITU-BB-Reports_Impact-of-Broadband-on-the-Economy.pdf,
Three Technology Revolutions, Pew Research Center, supra.
By the spring of 2015, "64% of American adults ... own[ed] a smartphone of some kind, up from 35% in the spring of 2011." Aaron Smith, U.S. Smartphone Use in 2015, Pew Research Center (Apr. 1, 2015), http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/. As a result of "mobile connectivity through cell phones, and later smartphones and tablet computers... any time-anywhere access to information [is now] a reality for the vast majority of Americans," as shown below:
Three Technology Revolutions, Pew Research Center, supra.
Mobile connectivity has, in turn, "changed the way people think about how and when they can communicate and gather information by making just-in-time and real-time encounters possible. [It has] also affected the way people allocate their time and attention." Id.; see also Andrew K. Przybylski & Netta Weinstein, Can You Connect with Me Now? How the Presence of Mobile Communication Technology Influences Face-to-Face Conversation Quality, 30 J. Soc. Pers. Relationships 237, 237-46 (2012) ("Interviews reveal mobile phones provide a continual sense of connection to the wider social world — a feeling that persists even if a mobile is in `silent mode.'") (citation omitted).
By 2011, the social networking site "Facebook host[ed] 140 billion photos." See Jay Yarow, Chart of the Day: Facebook's Huge Trove of Photos in Context, Business Insider (Sept. 19, 2011), http://www.businessinsider.com/chart-of-the-day-the-largest-photo-libraries-in-the-world-2011-9/. As a result, "[p]eople now see more images in a day than our ancestors would have seen in their lives; over 3.5 trillion photos have been taken, and there are ubiquitous tools for sharing such photos." Elizabeth G. Porter, Taking Images Seriously, 114 Colum. L.Rev. 1687, 1699 (2014).
Today, social media and social networking affect "the way that people think about their friends, acquaintances, and even strangers." Three Technology Revolutions, Pew Research Center, supra. In the past, people had mostly physical social networks comprised of family and friends. That has changed radically.
Id.
Cloud computing represents the "newest technology:"
Rogers, supra, at 1032-33 (emphasis added; footnotes omitted).
The Internet revolution had a dramatic impact on the availability of pornography generally. "In 1991, the year the World Wide Web went online, there were fewer than ninety different adult magazines published in America." Ogi Ogas & Sai Gaddam, A Billion Wicked Thoughts: What the Internet Tells Us About Sexual Relationships 8 (2012) (comprehensive study by neuroscientist of online pornography use). According to what the authors dubbed the "most comprehensive collection of porn-use stats on the web," in 2010, about 4 percent of the most trafficked websites in the world were sex-related. Julie Ruvolo, How Much of the Internet is Actually for Porn, Forbes, Sept. 7, 2011 (interviewing neuroscientist Ogi Ogas). "From July 2009 to July 2010, about 13% of Web searches were for erotic content." Id. To put the numbers in perspective, "Xvideos, the largest porn site on the web with 4.4 billion page views per month, is three times the size of CNN or ESPN, and twice the size of Reddit. LiveJasmin isn't much smaller. YouPorn, Tube8, and Pornhub — they're all vast, vast sites that dwarf almost everything except the Googles and Facebooks of the internet." Sebastian Anthony, Just How Big Are Porn Sites ?, ExtremeTech.com (Apr. 4, 2012), http://www.extremetech.com/computing/123929-just-how-big-are-porn-sites. "Approximately three quarters of men and half of women have intentionally viewed pornography over the internet." Kelly M. Babchishin, et al., Online Child Pornography Offenders are Different: A Meta-Analysis of the Characteristics of Online and Offline Sex Offenders Against Children, 44 Arch. of Sexual Behav. 45, 45 (2015) (citation omitted).
Faust, et al., supra, at 2-3 (emphasis added).
As noted by the United States Sentencing Commission,
U.S. Sentencing Comm'n, Federal Child Pornography Offenses (Dec.2012), at 312-13 (footnote omitted); see also Richard Wortley & Stephen Smallbone, U.S. Dep't of Justice, Off. of Community Oriented Policing Servs., Child Pornography on the Internet, Problem-Oriented Guides for Police Problem-Specific Guides Series No. 41 (May 2006), http://www.popcenter.org/problems/pdfs/ChildPorn.pdf, at 8 ("The Internet has escalated the problem of child pornography by increasing the amount of material available, the efficiency of its distribution, and the ease of its accessibility."); Kathryn C. Seigfried-Spellar, et al., Internet Child Pornography, U.S. Sentencing Guidelines and the Role of Internet Service Providers, 88 Inst. for Computer Scis., Soc. Informatics & Telecomm. Eng'r 17, 25 (2012) ("Researchers agree the amount of child pornography available via the Internet is unknown, and its complete removal remains impossible.") (citation omitted; emphasis added).
Today, "[c]hild pornography images are readily available through virtually every Internet technology including websites, email, instant messaging/ICQ, Internet Relay Chat (IRC), newsgroups, bulletin boards, peer-to-peer networks, and social networking sites." Dep't of Justice, Child Exploitation and Obscenity Section, Child Pornography, http://www.justice.gov/criminal-ceos/child-pornography (emphasis added); see also Krueger, et al., Sexual and Other Axis I Diagnoses of 60 Males Arrested for Crimes Against Children Involving the Internet, supra, at 625 ("[C]hild pornography is much easier to acquire over the Internet, with only a few clicks of a mouse, compared with printed pornography or DVDs, which would require much more time and effort to obtain.
Wortley & Smallbone, supra, at 10-11.
With the decrease in popularity of fee-based websites, the use of peer-to-peer networks to share and exchange child pornography has steadily increased. See Jelani Jefferson Exum, Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses, 16 Rich. J.L. & Tech. 8 (2010), http://jolt.richmond.edu/v16i3/article8.pdf, at 5; Ryan Hurley, et al., Measurement and Analysis of Child Pornography Trafficking on P2P Networks (May 2013) http://forensics.umass.edu/pubs/hurley.www.2013.pdf, at 1 (footnote omitted) (noting that peer-to-peer networks have become the "most popular mechanism for the criminal acquisition and distribution of child sexual exploitation imagery, commonly known as child pornography."); cf. Maggie Muething, Inactive Distribution: How the Federal Sentencing Guidelines for Distribution of Child Pornography
"Peer-to-peer networks, a relatively recent technological development[,] ... allow[] users to download files from the computers of other users. Unlike other means of acquiring files over the Internet, such as in a chat room or using e-mail ... no personalized contact is required between the provider and receiver." Id. at 1487-88 (footnotes omitted). Popular networks include "LimeWire, BitTorrent, Gnutella, eDonkey, Grokster, Kazaa and sundry others, [which] operate by directly connecting network participants to one another without the use of a centralized server." United States v. Handy, No. 6:08-CR-180, 2009 WL 151103, at *1 (M.D.Fla. Jan. 21, 2009). Joining a network does not require installation of "sophisticated multiple file-sharing programs." Rogers, supra, at 1031 (footnote omitted). A user "need only download the compatible software from the Internet to become part of the network and be able to download digital files from other members of that network" or upload or post files to the network. Id. (footnotes omitted). The content of the shared files is not monitored by the peer-to-peer network. Muething, supra, at 1489.
"A crucial aspect of peer-to-peer file-sharing is that the default setting for these networks is that downloaded files are placed in the user's `shared' folder, which allows others in the network to access the files. A user must affirmatively change his network setting to disable this sharing feature. The network is designed to encourage sharing by providing faster downloading if the user allows sharing." Rogers, supra, at 1031 (footnotes omitted); see also Muething, supra, at 1489 ("To encourage uploading, peer-to-peer programs often provide incentives, such as faster downloading capabilities, to users who share files.") (footnote omitted); cf. Handy, 2009 WL 151103 at *1 (noting the different ways in which peer-to-peer programs operate and that "the specific type of [peer-to-peer] application installed on a defendant's computer, and what settings are in place within that [peer-to-peer] application, are critical to the determination of whether a defendant's Guideline sentence should be enhanced pursuant to § 2G2.2(b)(3)(F)."). Although child pornography files are generally "only available for a short amount of time (only about 30% are available for more than 10 days of the year), there are at least tens of thousands of unique [child pornography] files available on [peer-to-peer] networks for download each day." Hurley, et al., supra, at 1.
According to the Sentencing Commission, most of the offenders who are found to "distribute" child pornography are "solely engaged in `impersonal' anonymous distribution by using an `open' [peer-to-peer] program such as LimeWire, with no two-way communication between the offender who distributed and persons who obtained images or videos from the offender's computer." U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 150-51 (footnote omitted) (discussing data from the Sentencing Commission's special coding project of non-production cases from fiscal year 2010). The rate of offenders who use peer-to-peer file-sharing to access child pornography has continued to increase in recent years. Id. at 166; see also U.S. Dep't of Justice, The National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress (Aug.2010), at 14.
According to one scholar, the ease of the technology has meant that "[i]ndividuals who might not have become [child pornography] traffickers may do so after encountering
Some online users may happen upon child pornography by chance. For example, in one study, some participants exhibited a "curiosity without a fixated interest." Krueger, et al., Sexual and Other Axis I Diagnoses of 60 Males Arrested for Crimes Against Children Involving the Internet, supra, at 630. "[M]any individuals would tend to search for all sorts of atypical pornographic images and `drift' from one site to another, selecting child pornography as one of many new types of images or activities to explore." Id. One scholar summarized the different theories for why people start to view child pornography, stating that for some men use starts with no mens rea:
Jeremy Prichard, et al., Internet Subcultures and Pathways to the Use of Child Pornography, 27 Comp. Law & Security Review 585, 587 (2011) (internal quotation marks and citations omitted; emphasis added).
The accessibility of online child pornography may also "disinhibit and desensitize people, especially to the sexualization of children. Such easy access can spark curiosity and lead to sexual exploration that might otherwise have remained dormant or unstimulated." Griffin-Shelley, supra, at 323 (citation omitted); see also Hannah Lena Merdian et al., The Three Dimensions of Online Child Pornography Offending, 19 J. of Sexual Aggression 121, 124 (2013) ("perceived anonymity and de-individuation of the internet may trigger behaviours which reflect inner personal desires that are usually suppressed by social constraints") (citation omitted); Hr'g Tr., Apr. 1, 2015, at 84:14-15 (Krueger) ("People think they are looking at it and no one is looking at them."). Chat rooms where child pornography is exchanged and discussed, may "normalize and validate sexual exploitation of children, promote the `market' for child pornography, and may directly or indirectly encourage others to produce new images of child pornography." U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 313 (footnote omitted).
Chad M.S. Steel, Web-based Child Pornography: The Global Impact of Deterrence Efforts and its Consumption on Mobile Platforms, 44 Child Abuse & Neglect 150, 154 (2015) (citations omitted; emphasis added).
"[A] typical profile of child pornography offenders is missing." Jenny A.B.M. Houtepen, et al., From Child Pornography Offending to Child Sexual Abuse: A Review of Child Pornography Offender Characteristics and Risks for Cross-Over, 19 Aggression & Violent Behavior 466, 467 (2014); see also U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 76 (noting that "[r]esearchers have attempted to classify child pornography offenders into different types based on their behavior and use of child pornography," but that "while categories can be helpful, the spectrum of child pornography offenders is not static...."). It should not be ignored that child pornography offenders may include several distinct subgroups of child pornography users of varying dangerousness to children:
Jason Scheff, Disproving the "Just Pictures" Defense: Interrogative Use of the Polygraph to Investigate Contact Sexual Offenses Committed by Child Pornography Suspects, 68 N.Y.U. Ann. Surv. Am. L. 603, 635-36 (2013) (footnotes omitted); see also Seigfried-Spellar, supra, at 28 ("[T]he motivations and reasons are just as diverse as the user, and child pornography
Often, child pornography offenders are "well educated and `well integrated in ... society.'" Scheff, supra, at 609 (internal citations omitted); see also Krueger, et al., Sexual and Other Axis I Diagnoses of 60 Males Arrested for Crimes Against Children Involving the Internet, supra, at 625 ("[C]hild pornography offenders [a]re apt to be more intelligent, better educated, and more likely to be referred by their lawyers than others...."). The Internet revolution has drastically impacted the number and variety of people arrested for child pornography offenses:
Krueger, et al., Sexual and Other Axis I Diagnoses of 60 Males Arrested for Crimes Against Children Involving the Internet, supra, at 630; see also supra Part V.C.
The Court of Appeals for the Second Circuit sometimes seems to have assumed that "child pornography shares a strong nexus with pedophilia" and that pedophiles use child pornography as "a model for sexual acting out with children." U.S. v. Brand, 467 F.3d 179, 198 (2d Cir.2006) (internal quotation mark and citation omitted). Automatically equating non-production child pornography offenders — people who possess, acquire or distribute images of child sexual exploitation — with pedophiles or child molesters is misleading. Some "research has suggested that the motivation to collect child pornography exists along a continuum, ranging from individuals who are solely collectors, to those who collect and actively seek validation for their interests, to those who swap/trade/sell child pornography, to those who produce child pornography, to those who both collect child pornography and abduct children." Weissler, supra, at 1502 (footnote omitted).
Pedophilia has been defined as "a clinical psychiatric diagnosis of a persistent sexual interest in sexually immature children and can be manifested in thoughts, fantasies, urges, sexual arousal, or behavior." U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 73-74. "While a pedophile might sexually prefer children and fantasize about acting on these desires, without such action, he is not a child molester." Scheff, supra, at 637 ("To be sure, many child molesters are pedophiles and many pedophiles are child molesters, but failing to appreciate the differences between these two groups, and attributing action to nothing more than carnal desires, is a gross oversimplification.") (footnotes omitted). According to the Sentencing Commission, "not all child pornography offenders are pedophiles, and not all child pornography offenders engage in other sex offending. While there is overlap in these categories, each is separate and none is a predicate to any other," as illustrated by the following chart:
Id. at 73 (the above graph is "merely intended to depict the[] relationships and does not attempt to show actual ratios of the various groups.").
Researchers disagree over the extent of overlap between child pornography offenders and pedophilia, as well as child pornography offenders and contact sexual offenders. See U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 75; Weissler, supra, at 1505-17, 1525-26. Available studies indicate that the overlap is likely to be much less than the above graph suggests. Several reports have found that, generally, child pornography offenders are "at low risk to commit hands-on sexual assaults of children." Austin F. Lee, et al., Predicting Hands-On Child Sexual Offenses Among Possessors of Internet Child Pornography, 18 Psych., Pol. & Law 644, 668 (2012); see also Merdian, et al., supra, at 123 (summarizing studies and concluding that "[f]or most offenders, their online offending has no behavioural link to contact sex offending"); Hessick, supra, at 875 (noting that "the empirical literature is unable to validate the assumption that there is a causal connection between possession of child pornography and child sex abuse."). Studies have shown that:
Hamilton, The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?, 22 Stan. L. Pol'y Rev. 545, 580-81 (2011) (footnotes omitted).
Recent research suggests that the recidivism rate of child pornography offenders may be low, with most child pornography viewers unlikely to engage in future sexual offenses. See Richard B. Krueger & Meg S. Kaplan, Non-Contact Sexual Offenses: Exhibitionism, Voyeurism, Possession of Child Pornography, and Interacting with Children Over the Internet, ECF No. 44 (unpublished manuscript), at 51-52 (describing a 2010 study of child pornography offenders by Seto, Hanson and Babchishin which "revealed that 4.6% of online offenders committed a new sexual offense during the 1.5 to 6 year follow-up period; 2.0% committed a contact sexual offense, and 3.4% committed a new child pornography offense. The authors suggested that there could be a distinct subgroup of online-only offenders who posed a relatively low risk of committing contact sexual offenses in the future.") (emphasis added); see also Sentencing Comm'n, Federal Child Pornography Offenses, at 310 (the Commission's recidivism study of 610 non-production offenders showed that the offenders' "general recidivism rate ... was 30.0 percent during an average follow-up period of eight and one-half years after the offenders' reentry into the community" while the offenders' "known sexual recidivism rate, a subset of the general recidivism rate, was 3.6 percent."); but see Letter from Anne Gannon, Nat'l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep't of Justice, to Honorable Patti B. Saris, Chair, United States Sentencing Comm'n, (Mar. 5, 2013) (taking issue with the Commission's finding that "the recidivism rate of child pornography offenders is not particularly high compared to other offenders," because "there is currently no valid risk assessment instrument applicable to child pornography offenders, and the existing data and literature do not support the assertion that recidivism rates for child pornography offenders are overstated.").
Failing to distinguish between different categories of child pornography offenders may unintentionally harm children by obfuscating the underlying crucial problem of child sexual abuse:
Cortney E. Lollar, Child Pornography and the Restitution Revolution, 103 J. of Crim. Law & Criminology 343, 375-76 (2013) (emphasis added) ("Eighty-six percent of child sexual abuse victims are abused by someone they already know. More than 96% of child pornography victims already know the person who is filming and producing the images of their sexual abuse.") (footnotes omitted); see also Carissa Byrne Hessick, Disentangling Child Pornography from Child Sex Abuse, 88 Wash. U.L.Rev. 853, 888-90 (2011) ("One of the most pervasive misperceptions about child sex abuse is that it is a crime perpetrated by strangers."). The most serious dangers to children are from persons they know rather than from anonymous pornography viewers. As one scholar noted:
Id. at 888-89 (footnote omitted; emphasis added).
By focusing on child pornography offenders, "modern practices have resulted in some defendants who possess child pornography receiving longer sentences than defendants who sexually abuse children." Id. at 860 (footnote omitted; emphasis added); see also U.S. v. Dorvee, 616 F.3d 174, 184 (2d Cir.2010) ("The irony of the court's conclusion in this area ... is that the Guidelines actually punish some forms of direct sexual contact with minors more leniently than possession or distribution of child pornography").
Although non-production child pornography offenders often are not the perpetrators of direct sexual abuse of minors, actual children have been seriously injured in the production of those images. By viewing them and contributing to their distribution, child pornography offenders perpetuate harm. The Department of Justice explained:
Wortley & Smallbone, supra, at 17-18 (footnotes omitted). "[C]hild pornography creates a permanent record of the abuse, which may trouble victims for the rest of their lives." Henzey, supra, at 8; see also New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ("[The] materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.") (footnote omitted); U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 311 ("Child pornography offenses inherently involve the sexual abuse and exploitation of children. Victims are harmed initially during the production of child pornography, but the perpetual nature of the distribution of images on the Internet causes a significant, separate, and continuing harm to victims").
The court has received many letters from defendants, their families, and concerned persons regarding the effects and appropriateness of punishment, including lengthy prison sentences and strict sex offender registration requirements, in what are essentially non-production child pornography cases. A sampling of excerpts from those letters follows:
Letter from G.K. G., May 22, 2010, filed in United States v. Polouizzi, No. 6-CR-22, ECF No 241.
A mother wrote:
Letter from R.F., Oct. 25, 2013, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 364-1.
A father wrote:
Letter from R.W. F., Oct. 1, 2013, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 358-1.
Another father wrote:
Letter from B. H., undated, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 357-1.
A mother wrote:
Letter from S. G., June 30, 2010, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 269-2.
A pastor, apparently not personally impacted by the issue, wrote:
Letter from Rev. A.M. S., Jan. 17, 2011, filed in United States v. Polouizzi, No. ECF No. 300.
A brother wrote:
Letter from J.D. P., June 8, 2010, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 254-2.
The letters exemplify the serious adverse collateral consequences that incarceration of a parent or child can have on the family unit. "Incarceration of a parent normally causes major negative economic, social and psychological consequences to the child, and may have life-long [adverse] repercussions." Michal Gilad, The Young and the Helpless: Re-Defining the Term "Child Victim of Crime" (U. Penn. L. Sch., Working Paper No. 14-23, 2014), at 31-32; cf. Jean C. Lawrence, ASFA in the Age of Mass Incarceration: Go to Prison — Lose Your Child? 40 Wm. Mitchell L.Rev. 990, 1002-03 (2014) (noting that "the Center for Disease Control has determined that parental incarceration is an `adverse childhood experience' (ACE) that `significantly increases the likelihood of long-term negative outcomes for children.'") (footnote omitted); Sarah Abramowicz, Beyond Family Law, 63 Case W. Res. L.Rev. 293, 321 (2012) (footnotes omitted) ("[C]hildren separated from their parents suffer developmental harm as well, often in the form of behavioral and educational difficulties."); see also United States v. Bannister, 786 F.Supp.2d 617, 653-55 (E.D.N.Y.2011) (collecting literature and discussing effect of incarceration on family and community).
The court received an unsolicited letter from a psychologist, who detailed the effect of charges of receipt of child pornography on the family of one of her patients:
Letter from J.M. D., May 31, 2010, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 249-3.
A lady wrote:
Letter from D. D., July 7, 2010, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 268-2.
One convicted child pornography offender wrote:
Letter from D. L., undated, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 347-1.
A mother wrote:
Letter from S. C., June 25, 2010, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 264-3.
Upon release from prison, many inmates "have a difficult time reestablishing their relationships with their children." Jenni Vainik, The Reproductive and Parental Rights of Incarcerated Mothers, 46 Fam. Ct. Rev. 670, 680 (2008) (footnote omitted); see also United States v. G.L., 305 F.R.D. 47, 50 (E.D.N.Y.2015). Reconnecting with family and loved ones may be particularly hard for convicted sex offenders, because of the stigma associated with the offense as well as the strict restrictions imposed upon release. See 42 U.S.C. § 16913 (federal sex offender registration and notification requirements); 18 U.S.C. § 3583(k) (supervised release term for federal sex offenders); see also N.Y. Correct. Law § 168 et seq. (New York state's sex offender registration act may also apply to federal child pornography offenders residing in New York state pursuant to § 168-a (2)(d)(iii)).
A mother wrote:
Letter from R.G. R., Oct. 1, 2013, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 360-1.
The parents of a young man incarcerated for downloading child pornography wrote:
Letter from H.F. and R. F., Feb. 3, 2011, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 315-2.
A convict revealed:
Letter from P. L., undated, filed in United States v. Polouizzi, No. 6-CR-22, ECF No. 271-2.
A high degree of discretion is possessed by the sentencing judge in determining appropriate punishment. See, e.g., United States v. Cavera, 550 F.3d 180, 188 (2d Cir.2008) (en banc) ("A sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime"). It is the sentencing court that "is in the best position to judge the appropriateness of a sentencing departure in light of the defendant's overall history and character, his remorse or lack of it, and other factors bearing on the sentence to be imposed." United States v. Crowley, 318 F.3d 401, 421 (2d Cir.2003); see also United States v. D.M., 942 F.Supp.2d 327, 341 (E.D.N.Y. 2013).
As already noted, defendant pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B):
Because defendant was convicted of a crime of possession of child pornography (rather than one of production, receipt or distribution), no statutory minimum mandatory term of imprisonment is applicable. See 18 U.S.C. § 2252(b)(2) (2012). The maximum term in prison is twenty years if the person depicted is under twelve years old. Id. He is subject to a minimum term of supervised release of five years. 18 U.S.C. § 3583(k) (2015).
In the absence of a mandatory statutory minimum sentence, a district court must consider a variety of factors when determining the appropriate punishment. See, e.g., Ewing v. Cal., 538 U.S. 11, 34-35, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (Stevens, J., dissenting) ("[B]efore guideline sentencing became so prevalent[,] ... sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment — namely, deterrence, incapacitation, retribution, and rehabilitation").
A district court determines the applicable sentencing range pursuant to the United States Sentencing Commission Guidelines ("Guidelines"). See Dorvee, 616 F.3d at 180 (citing Gall v. United States, 552 U.S. 38, 39, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). In United States v. Booker, the Supreme Court determined that the Guidelines are advisory. 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although no longer mandatory, the Guidelines' sentencing ranges continue to function as "the starting point and the initial benchmark" for all sentencing proceedings. See Gall, 552 U.S. at 46, 49, 128 S.Ct. 586 (noting that the Guidelines are presumed to be "the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions"). Even if advisory only, the Guidelines must be given "respectful consideration" by the sentencing court. See Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
After consulting the Guidelines, a sentencing court performs an "individualized assessment" of the situation. Gall, 552 U.S. at 50, 128 S.Ct. 586. This analysis is guided by "[r]easonableness" and an "individualized application of the statutory sentencing factors" listed in section 3553(a) of the United States Code, Title 18. See Dorvee, 616 F.3d at 184 (citing Gall, 552 U.S. at 46-47, 128 S.Ct. 586); Kimbrough, 552 U.S. at 113, 128 S.Ct. 558 (Scalia, J., concurring) ("[T]he district court is free to make its own reasonable application of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines").
In view of the excessive incarceration rates in the recent past and their unnecessary, deleterious effects on individuals sentenced, society and our economy, justifiable frugality in incarceration is prized. See, e.g., Nat'l Res. Council of the Nat'l Academies, The Growth of Incarceration in the United States, Exploring Causes and Consequences, 8 (2014) ("Parsimony: the period of confinement should be sufficient
Section 3553(a) includes a list of "factors" a court is to consider when determining the appropriate sentence ("the § 3553(a) factors"). They are as follows:
18 U.S.C. § 3553(a).
Although no longer mandatory, 18 U.S.C. § 3553(b)(2) provides guidance on instances in which district courts may upwardly or downwardly depart from the Guidelines for crimes relating to children or sexual offenses. See United States v. Selioutsky, 409 F.3d 114, 116-17 (2d Cir. 2005) (considering the excising of § 3553(b)(2) under the rationale set forth in Booker).
Under § 3553(b)(2), sentencing courts may upwardly depart from the Guidelines if "there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described." 18 U.S.C. § 3553(b)(2)(A)(i); see also U.S.S.G. § 5K2.0(a)(1)(B).
According to § 3553(b)(2), sentencing courts may downwardly depart from the Guidelines, in addition to refusing to follow them, if:
18 U.S.C. §§ 3553(b)(2)(A)(ii)-(iii).
A sentencing court need not follow the sentencing range suggested by the Guidelines if it disagrees with a relevant policy reflected in the Guidelines. See Spears v. United States, 555 U.S. 261, 264, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (stating that "the point of Kimbrough" was to "recogni[ze] [the] district courts' authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case"). This authority "is at its greatest when the offense Guideline at issue is not the product of the Commission's empirical analysis and technical expertise." United States v. Diaz, No. 11-CR-821, 2013 WL 322243, at *3 (E.D.N.Y. Jan. 28, 2013). This is the case with respect to the Guidelines for child pornography offenses, which were amended at the direction of Congress rather than through the Sentencing Commission's empirical approach. See Dorvee, 616 F.3d at 184-86. The Commission opposed some changes to the Guidelines directed by Congress and has sought authority from Congress to amend the current child pornography provisions. See id. at 185; U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 322 ("[T]he Commission believes that Congress should enact legislation providing the Commission with express authority to amend the current guideline provisions that were promulgated pursuant to specific congressional directives or legislation directly amending the guidelines.").
A sentencing court shall "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). If the sentence is not of the kind prescribed by, or is outside the range of, the Guidelines referred to in section 3553(a)(4), the court shall indicate the specific reasons for imposing a sentence different from the Guidelines. 18 U.S.C. § 3553(c)(2). These "reasons must also be stated with specificity in a statement of reasons form." Id. Even though, pursuant to Booker, the Guidelines are no longer mandatory, the sentencing court must still adhere to the requirements of section 3553(c)(2). United States v. Jones, 460 F.3d 191, 196-97 (2d Cir.2006).
The sentencing court's written statement of reasons shall be "a simple, fact-specific statement explaining why the Guidelines range did not account for a specific factor or factors under § 3553(a)." United States v. Rattoballi, 452 F.3d 127, 138 (2d Cir.2006), abrogated in part on other grounds by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). A statement should demonstrate that the court "considered the parties' arguments and that it has a reasoned basis for exercising its own legal decision-making authority." Cavera, 550
Pursuant to 18 U.S.C. § 2259, victims of certain child exploitation offenses, including possession of child pornography, are entitled to mandatory restitution. The statute provides, in relevant part, that the order of restitution "shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses." 18 U.S.C. § 2259(b)(1).
18 U.S.C. § 2259(b)(3).
In Paroline v. United States, the Supreme Court addressed the question of how to determine the proper amount of restitution that "a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed." ___ U.S. ___, 134 S.Ct. 1710, 1716, 188 L.Ed.2d 714 (2014). The Court held that "[r]estitution is ... proper under § 2259 only to the extent the defendant's offense proximately caused a victim's losses." Paroline, 134 S.Ct. at 1722. The Court then determined that, in a case in which a defendant possesses images of a victim and the
Id. at 1727. In a case like Paroline, where the defendant possessed two images of "Amy" — the victim seeking restitution — and was one of potentially thousands of people possessing her images, the Court noted that although any award should not be "a token or nominal amount," restitution "would not be severe ... given the [weak] nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim's general losses from the trade in her images, which are the product of the acts of thousands of offenders." Id.
In terms of how courts should go about calculating such an award, the Court noted that "[t]his cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment." Id. at 1728. Specifically, a court should "assess as best it can from available evidence the significance of the individual defendant's conduct in light of the broader causal process that produced the victim's losses." Id. at 1727-28. As a starting point, the Court suggested that district courts "determine the amount of the victim's losses caused by the continuing traffic in the victim's images," and "then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant's conduct in producing those losses." Id. at 1728. The Court then identified a variety of factors that district courts could take into consideration when determining proper restitution, including:
Id.
The Supreme Court cautioned that "[t]hese factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders." Id. Rather, the factors are to serve as "rough guideposts for determining an amount that fits the offense." Id.
The total Guidelines offense level is 28. The criminal history category is I, yielding a Guidelines imprisonment range of 78-97 months. U.S.S.G. ch. 5, pt. A (Nov.2014); see also Sent. Hr'g. The offense level was calculated by the probation department as follows:
PSR at 5-6.
The probation department viewed the sentencing range provided under the Guidelines as excessive and recommended a sentence of 24 months in custody with a term of five years of supervised release. U.S. Prob. Dep't Sent. Rec., Oct. 17, 2014 (sealed), at 3.
A sentencing court is required to carry out an individualized assessment in order to reach a sentence that is "sufficient, but not greater than necessary, to comply" with the requirements of the § 3553(a) factors. 18 U.S.C. § 3553(a).
The individual circumstances of the case were analyzed, including the nature of the offense and the history and characteristics of the defendant. A non-incarceratory
The expert, Dr. Krueger, testified that, in his opinion, not only could his children safely live with R.V., but they would be negatively affected if they were to be separated from their father:
Krueger Letter at 12; see also Hr'g Tr., Apr. 1, 2015, at 63:16-18; supra Part III. A.3.b. Ms. Guevara, a social worker, also testified that the defendant belongs to a strong family unit and his children would suffer from his absence. See supra Part III.B; Hr'g Tr., Apr. 1, 2015, at 19:19-21; Family Assessment at 6 ("[R.V.'s] presence and participation in the home is vital to this family's healing and progress ....").
Defendant has expressed sincere remorse for his actions and has fully participated in treatment, making adequate progress. See supra Part II.E. His treatment provider noted that, given R.V.'s "commitment to treatment and his ability to work on improving his recognition of his personal high risk factors he appears capable [of] maintaining a non-relapse behavior." Mustard Seed Client Compliance Report, Apr. 1, 2015, Ct. Ex. 2, at 3. Dr. Krueger agreed that continued participation in a treatment program under federal supervision would have a "substantial impact upon decreasing" any risk of re-offense. See Hr'g Tr., Apr. 1, 2015, at 53:11-54-12; see also Krueger Letter at 12. A non-incarceratory sentence under strict supervised release conditions would allow defendant to continue benefiting from treatment opportunities while also supporting his family.
Pursuant to 18 U.S.C. § 3553(a)(2), any sentence imposed must: reflect the seriousness of the offense; promote respect for the law; provide just punishment for the offense; afford adequate deterrence to criminal conduct; protect the public from further crimes of the defendant; and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2); see also D.M., 942 F.Supp.2d at 345-46. The likelihood that defendant "will engage in future criminal conduct [is] a central factor that district courts must assess when imposing [a] sentence." Pepper v. United States, 562 U.S. 476, 492, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011); 18 U.S.C. § 3553(a)(2)(C).
R.V. pled guilty to a felony. Possession of child pornography may contribute to the existence of a market that harms and exploits children. The serious injury children are exposed to does not end with the making of child pornography; instead, it is perpetuated by the continued distribution and consumption of those images. See D.M., 942 F.Supp.2d at 344 ("Continued emotional violence is visited upon the victims
The Guidelines fail to account for this class of offenders. Several of the enhancements applicable to defendants convicted of non-production offenses, such as the two-level enhancement for use of a computer, will almost always be applicable. This was recognized by the Second Circuit Court of Appeals in Dorvee, when it noted that:
Dorvee, 616 F.3d at 186 (internal citations omitted). The Department of Justice also acknowledged that certain Guideline provisions, including the 2-level computer enhancement, do not adequately distinguish between different categories of defendants. Letter from Anne Gannon, Nat'l Coordinator for Child Exploitation & Interdiction, to Judge Patti B. Saris 1 (Mar. 5, 2013) ("Because the vast majority of child pornography offenses now involve the use of a computer, this [specific offense characteristic] should be eliminated and replaced by others ....").
In the present case, Dr. Krueger testified that R.V. "stumbled on" and "began viewing" child pornography about one year prior to his arrest. At the same time, R.V. began engaging in online chats with underage girls. See Hr'g Tr., Apr. 1, 2015, at 47:17-48:24. Dr. Krueger performed several tests to determine R.V.'s mental condition and sexual tendencies and concluded that R.V.'s risk of sexual violence and re-offense was "low" or "extremely low." Krueger Letter at 12; see also Hr'g Tr., Apr. 1, 2015, at 46:22-24. Dr. Krueger also determined that R.V. was not a danger
R.V. has been actively engaged in treatment following his arrest. See supra Part HE. A satisfactory progress report provided by Mustard Seed prior to R.V.'s sentencing concluded that:
R.V. Sent. Mem., Mar. 30, 2015, ECF No. 41, at Ex. E. Dr. Krueger considered R.V.'s treatment with Mustard Seed. He determined it was an "appropriate program," which "will well take care of [R.V.]" and could also assist in the "management of [R.V.'s] overall risk." Hr'g Tr., Apr. 1, 2015 at 62:19-63:15; see also Mustard Seed Client Compliance Report, April 1, 2015, Ct. Ex. 2, at 4 ("[W]e believe that [R.V.], if given the chance to, can benefit from community based treatment to address his involvement in the commission of a sexually deviant act.").
Given the credible medical testimony that, with appropriate treatment and supervision, R.V. does not present a risk to the public, a non-incarceratory sentence with a prolonged period of supervised release under strict conditions, including continued treatment, adequately reflects the seriousness of the offense and serves the purposes of punishment in this case. The court considered the government's request that the period of supervised release "be longer than five years; at least until the youngest child is of an age where she might be able to go to college and be out of the house." Sent. Hr'g Tr., at 36:9-14. In following the government's suggestion, the court concluded that a supervised release period of seven years was proper. Id. at 37:17-18. The court also noted that "[s]upervised release should be intense with requirement of treatment at the beginning and then probation may utilize its judgment to reduce the intensity so it doesn't interfere with the family ...." Id. at 37:18-22.
In addition to the conditions of his supervised release, R.V. will be subject to prolonged and severe sex offender registration requirements under federal law and likely also under New York law. See 42 U.S.C. § 16913; 18 U.S.C. § 3583(k); N.Y. Correct. Law § 168-a (2)(d)(iii) (providing that the term "sex offense" includes "a conviction of ... any of the provisions of 18 U.S.C. 2251, 18 U.S.C. 2251A, 18 U.S.C. 2252, 18 U.S.C. 2252A, 18 U.S.C. 2260, 18 U.S.C. 2422(b), 18 U.S.C. 2423, or 18 U.S.C. 2425, provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense as of the date on which this subparagraph takes effect."). Such post-release conditions represent exacting collateral consequences which serve to deter future criminal conduct. Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (recognizing that the "stigma" imposed for violation of sex crime statute "is not trivial"); United States v. Mateo, 299 F.Supp.2d 201, 209-10 (S.D.N.Y.2004) ("[B]eyond the offender's actual deprivation of liberty when incarcerated, a host of other penalties and burdens always attend criminal conviction, to name a few: losses of family life, of socioeconomic
Sentences actually imposed in similar cases have been considered, as required by § 3553(a)(3)-(4). The sentencing options available to the court include combinations of the following variables: custody followed by supervised release; probation; restitution; forfeiture; and fines. Of critical importance is also the availability of sex offender treatment.
In this case, the sentences available were as follows: an incarceratory sentence of between 78 and 97 months pursuant to the Guidelines; a term of supervised release of five years to life; a Guidelines fine range of $12,500 to $125,000; and a mandatory $100 special assessment. See PSR, at Part D. The court considered all available options and determined that a sentence of time-served of five days, seven years of strict supervised release with sex offender treatment, a $12,500 fine in addition to $2,000 in victim's restitution and a $100 special assessment, coupled with the continuing sex offender notification and registration requirements as provided by statute under 42 U.S.C. § 16913, amounted to appropriate punishment, for the reasons set forth herewith.
The United States Sentencing Commission has voiced concerns with respect to the current Guidelines' ability to reflect varying degrees of culpability given the impact of recent technological changes on the offense of child pornography. As explained by the Second Circuit Court of Appeals in Dorvee, while the Guidelines are normally developed by the Commission through empirical studies focused on data about past sentencing practices, this was not the case for the child pornography offenses. Rather than being developed empirically by the Commission, these guidelines were amended at the direction of Congress. The Commission opposed increasingly harsher penalties imposed by the legislature. See Dorvee, 616 F.3d at 184-86; see also United States Sentencing Commission, The History of the Child Pornography Guidelines, Oct. 2009, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchprojects-and-surveys/sex offenses/20091030_History_Child_Pornogra-phy_Guidelines.pdf.
In 2012, the Commission completed a multi-year examination of "offenders sentenced under the federal sentencing guidelines and corresponding penal statutes concerning child pornography offenses." U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at i. The Commission was especially concerned with the Guidelines applicable to non-production child pornography offenses and the extent to which they managed to meaningfully distinguish among different offenders' levels of culpability. As explained in the resulting report, "several factors" prompted the Commission's examination:
Id. at i-ii (emphasis added).
While observing that "[a]ll child pornography offenses are extremely serious because they both perpetuate harm to victims and normalize and validate the sexual exploitation of children," the Commission concluded that "revisions are needed to more fully differentiate among offenders based on their culpability and sexual dangerousness." Id. at 311.
Recommended by the Commission was that "the non-production child pornography sentencing scheme should be revised
A below-Guidelines sentence for a first time non-production offender which takes into account the changing technological landscape's impact and his family's needs is consistent with concerns expressed by the Sentencing Commission.
18 U.S.C. § 3553(a)(6) requires an analysis of comparable sentences. While courts have sometimes imposed sentences within and above the applicable Guideline ranges in child pornography cases, disagreement with the current sentencing scheme has convinced an increasing number of judges to impose sentences below those recommended by the Guidelines in non-production cases. See, e.g., D.M., 942 F.Supp.2d at 347-48 ("While it is not difficult to find cases where severe sentences within and above the Guidelines have been imposed, there is by no means a paucity of cases where judges downwardly depart from the Guidelines. The unreasonable harshness of the Guidelines for an offense of child pornography possession, of which defendant is charged, has been recognized by courts and judges from across the country.").
As illustrated by the following table, a recent survey by the Sentencing Commission demonstrated that about seventy percent of federal judges considered the Guidelines for child pornography possession and receipt too severe.
U.S. Sentencing Comm'n, Results of Survey of United States District Judges January 2010 through March 2010 (June 2010), at 13.
A subsequent report by the Sentencing Commission recorded an increasing trend in sentencing below the Guidelines range for non-production cases:
A strong judge-initiated trend of departing downward for defendants in child pornography offenses has emerged in recent years:
Jeffrey T. Ulmer, Mismatch of Guidelines and Offender Danger and Blameworthiness Departures as Policy Signals from the Courts, 13 Criminology & Pub. Pol'y 271, 275 (2014).
In departing downward, district judges nationwide have spoken out against the harsh Guidelines sentences for child pornography offenders. See, e.g., United States v. Kelly, 868 F.Supp.2d 1202, 1211 (D.N.M.2012) (defendant received and downloaded 580 images of child pornography; "[Defendant]'s advisory Guideline sentence of 87 to 108 months imprisonment
Courts have noted the comparatively lower culpability of defendants convicted of possessing child pornography (as opposed to distribution, production and actual sexual abuse). With respect to defendants convicted only of possession offenses, some courts have imposed sentences with minimal or no incarceration. See, e.g., D.M., 942 F.Supp.2d at 352; United States v. Autery, 555 F.3d 864, 867 (9th Cir.2009) (affirming non-Guidelines sentence of five years of probation and no period of incarceration for possession of child pornography); United States v. Stall, 581 F.3d 276, 277-78 (6th Cir.2009) (affirming non-Guidelines sentence of one day of incarceration followed by ten-year period of supervised release); United States v. Prisel, 316 Fed.Appx. 377, 378 (6th Cir.2008) (affirming non-Guidelines sentence of one day in prison followed by eighteen months of home confinement for possession of child pornography); United States v. Rowan, 530 F.3d 379, 380 (5th Cir.2008) (affirming non-Guidelines sentence of five years of probation and no period of incarceration for possession of child pornography); United States v. Polito, 215 Fed.Appx. 354, 355 (5th Cir.2007) (per curiam) (affirming non-Guidelines sentence of five years of probation with one year of house arrest for possession of child pornography); United States v. Crespo-Rios, No. 08-CR-208, 2015 WL 6394256, *1 (D.P.R., Oct. 19, 2015) (holding "that resentencing Defendant to the same sentence — that is, time served followed by a long period of supervised release — is justified in view of each of the sentencing factors outlined in 18 U.S.C. § 3553"); United States v. Mallatt, No. 13-CR-3005, 2013 WL 6196946, at *13 (D.Neb. Nov. 27, 2013) ("sentence of time served, followed by six years of supervision with special conditions including intensive treatment is adequate to fulfill the goals of sentencing in this case"); United States v. Diaz, 720 F.Supp.2d 1039, 1048 (E.D.Wis.2010) (imposing non-Guidelines sentence of six months of incarceration followed by twelve years' supervised release); United States v. Meillier, 650 F.Supp.2d 887, 887 (D.Minn.2009) (imposing non-Guidelines sentence of one day of
In this case one victim known as "Vicky" has made a restitution request. One video of the victim was found on defendant's digital media. Letter re Sentencing as to [R.V.], Mar. 25, 2015, ECF No. 40 (sealed), at 7. Attorneys for "Vicky" submitted a restitution request, as well as Victim Impact Statements dated December 2011, January 2013 and September 2013. The restitution request details "Vicky's" continuing psychological injury stemming from the ongoing proliferation of images showing the severe abuse she was subjected to as a child. Id. at 7-8.
Following Paroline, the government suggested that the court start by "determin[ing] the amount of the victim's losses caused by the continuing traffic in the victim's images." Id. at 8 (internal quotation marks omitted). The government noted that "Vicky" estimated her current losses at $1,085,718.09, of which she had received $678,094.61 in restitution payments. Of "Vicky's" total losses $407,623.48 had yet to be fulfilled through restitution. Id.
The government analyzed the Paroline factors and determined that a payment of $2,000 amounted to proper restitution in this case. Id. at 8-10 ("Notably, if one divides `Vicky's' total loss estimate by the number of defendants with standing restitution orders involving `Vicky,' plus the instant defendant ... the result is $2,162 per defendant ($1,085,718.09 divided by 502).") (footnote omitted). Defendant did not object. Sent. Hr'g at 24:6-8. Since the government's assessment is in accord with the Supreme Court's decision in Paroline, this court ordered R.V. to pay $2,000 in restitution, payable at $100 a month to the Clerk of the Court. Sent. Hr'g at 24:9-11, 19:20.
Child pornography is an issue that implicates deep religious beliefs, ethical considerations, complex conceptions of sexuality — its joys and problems — evolving notions of freedom of speech, and concerns about privacy. Our society is deeply divided on how to address child pornography. See Daniel Beekman, Appeals Court Reverses Light Sentence Given to Queens Child Porn Perv and Molester, N.Y. Daily News, Sept. 27, 2013, http://www.nydailynews.com/news/crime/court-reverses-sentence-quns-perv-article-1.1468359; Lauren Garrison, Child Porn Cases Trigger New Debate: Judges Lack Discretion with Mandatory Sentencing, New Haven Register, Aug, 15, 2010, http://www.nhregister.com/article/NH/20100815/NEWS/308159971; A.G. Sulzberger, Defiant Judge Takes on Child Pornography Law, N.Y. Times, May 22, 2010, at A1 ("There is little public sympathy for collectors of child pornography.").
The Sentencing Commission has repeatedly requested that Congress review sentencing for child pornography cases, particularly the imposition of mandatory minimums. See U.S. Sentencing Comm'n, Federal Child Pornography Offenses, at 320-31; U.S. Sentencing Comm'n, The History of the Child Pornography Guidelines. Yet, Congress has not acted. For a congressperson, addressing child pornography is akin to stepping onto the third rail. The net result of congressional inaction has been that inconsistent and long sentences that destroy not only the individual but the family and community have sometimes been ordered.
Across the country, an increasing number of federal judges have criticized changes to sentencing laws that have effectively quadrupled defendants' average prison term over the last decade. See, e.g., United States v. Grober, 624 F.3d 592, 603-04 (3d Cir.2010); see also supra Part VII.B.5. The Court of Appeals for the Second Circuit has recognized the dearth of data on critical issues affecting risks, dangers, and appropriate sentences in these cases. See, e.g., U.S. v. Dorvee, 604 F.3d 84, 94 (2d Cir.2010) (finding error in sentencing court's "apparent assumption" about link between possession of child pornography and risk of acting out); United States v. Falso, 544 F.3d 110, 122 (2d Cir.2008) (finding error in district court's reliance on defendant's history of sexual abuse of minor and "general proclivities" of child pornographers in finding probable cause to issue a search warrant in child pornography investigation); see also United States v. Stern, 590 F.Supp.2d 945 (N.D.Ohio 2008) (recognizing the difference in culpability between viewing and producing child pornography as well as the wide variation of sentences in child pornography cases).
As explained above in Part VII.B.4, Section 2G2.2 of the Sentencing Guidelines is "a Guideline that is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what § 3553 requires." Dorvee, 616 F.3d at 184. Following its holding in Dorvee, the Court of Appeals for the Second Circuit has consistently held that district courts are permitted to consider a broad, policy-based challenge to child pornography sentencing guidelines in downwardly departing. See, e.g., United States v. Alhakk, 505 Fed.Appx. 51, 55 (2d Cir.2012) ("[T]he
Other circuits have also declared that "district courts may vary from the child pornography guidelines ... based on policy disagreement with them, and not simply based on individualized determination that they yield an excessive sentence in a particular case." U.S. v. Henderson, 649 F.3d 955, 963 (9th Cir.2011).
The United States Department of Justice has expressed concern with the current Guidelines' failure to afford proper punishment for child pornography offenses and has requested the Sentencing Commission to revise the Guidelines, writing: "the evolution of the child pornography `market' ha[s] led to a significantly changed landscape — one that is no longer adequately represented by the existing sentencing guidelines." Letter from Anne Gannon, Nat'l Coordinator for Child Exploitation & Interdiction, to Judge Patti B. Saris 1 (Mar. 5, 2013).
"Rationales for child pornography Guidelines for non-production offenses have been shredded." D.M., 942 F.Supp.2d at 352. A below-Guidelines sentence in the instant case is supported by concerns expressed by federal appellate courts and district courts, as well as the Sentencing Commission and the United States Department of Justice. It is recognized that the child pornography Guidelines are "fundamentally different from most and ..., unless applied with great care, can lead to unreasonable sentences that are inconsistent with what § 3553 requires." Dorvee, 616 F.3d at 184. Acceptance of this fact enhances a sentencing court's ability to properly comply with its duty to impose sentences that reflect the statutory goals of sentencing and are based on a required individualized assessment of the facts presented.
A non-incarceratory sentence with a period of seven years of strict supervised release and treatment is appropriate in this case. Given the individual characteristics of this defendant and his family, the sentence strikes an appropriate balance between general and specific deterrence concerns and the need for rehabilitation.
Removing R.V. from his family will not further 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.
Defendant has been deemed to pose little or no risk to society. The probation department is directed to closely supervise him to ensure that the public is protected.
SO ORDERED.