As noted by this blog previously, see here, the Adam Walsh Act of 2006 prohibits the reproduction of child pornography during legal proceedings, and in particular, permits the government to refuse to supply copies of child pornography to the defense in a child pornography prosecution as long as the material is made “reasonably available” to the defendant.  The “reasonably available” concept (the so-called “safety valve” of the Act) is defined in the statute as “ample opportunity for inspection . . . at a Government facility.”  The Second Circuit has not yet defined what constitutes “ample opportunity,” but several district courts have required it to be “due-process-level” access to the original material, or the defense team gets a copy of the hard-drive in question.

In United States v. Patt, 06-cr-6016, 2008 WL 2915433 (W.D.N.Y. July 24, 2008), the court further refined the meaning of “ample opportunity,” concluding that there was no due process violation where the defense expert may have found it time-consuming and inefficient to do his job at the government facility, but was nonetheless able to “conduct a complete and independent analysis of the hard-drives” at issue.  In the absence of any claim that the results were “incomplete or compromised . . Patt was provided ample opportunity to inspect and analyze the computer drives that were seized and are alleged to contain child pornography.” 

Inspired by the Supreme Court’s holding in Kimbrough v. United States, 128 S. Ct. 558, 570 (2007), that a district judge may disregard a provision of the Sentencing Guidelines that is not the product of “empirical data and national experience,” the National Federal Defender Sentencing Resource Counsel has started a project called “Deconstructing the Guidelines,” which will publish papers critically examining individual guidelines to determine if they fail to reflect the exercise of the Sentencing Commission’s “characteristic institutional role.”  That role, as the Federal Defenders point out, includes two components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field.

Two papers in the project were published this month, one analyzing the child pornography guidelines (Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (June 10, 2008) by Troy Stabenow) and one on the career offender guideline (Deconstructing the Career Offender Guideline (June 16, 2008), by Amy Baron-Evans, Jennifer Coffin, & Sara Noonan).  Already, as Professor Berman notes in his Sentencing Law and Policy website, a district judge in Wisconsin has cited the paper on the child porn guidelines to support a substantial below-guidelines sentence in a child porn possession case (in fact a sentence of 72 months, instead of one within the applicable guideline range of 210-262).  Explaining his variance in United States v. Hanson, No. 07-CR-330 (E.D. Wisc. June 20, 2008), Judge Lynn Adelman states:

As Stabenow explains, much like the crack guideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 [the child pornography guideline] is not representative of the Commission’s typical role or of empirical study.  The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary.  Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes. . . . To the extent that the advisory guidelines deserve continued respect from courts, that respect will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices.  This guideline simply does not represent that role, as the Commission itself has acknowledged.

There is a curious irony to Judge Weinstein's decision in United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008).  Although for many it is a quintessential example of liberal judicial activism, the decision is rooted squarely in conservatives' favorite theory, originalism, i.e. interpreting the constitution minus over two hundred years of history.  And, incidentally, it is hardly a philosophy that Judge Weinstein has been known to embrace.

Of course, the bigger irony in the decision is that we must reach back in history to more barbaric times to find compassionate practices that mitigate the barbarism of today's mandatory minimum sentences.  Holding, contrary to decades of precedent, that he had erred in failing to advise a jury of certain mandatory minimum sentences applicable in a child pornography possession case, Judge Weinstein points out that a jury in 1791 would most certainly have known the consequences of their decision (such jury, it should be noted, made up of white, male property owners), and would thus have been empowered to show mercy by manipulating its verdict.  Polizzi puts pay to the idea that any judicial philosophy is less malleable than another or more likely to restrain judicial law-making. 

Facts
 
At the heart of this decision is the tragic story of Peter Polizzi, an Italian immigrant who on the surface had achieved the American dream – successful businessman, father of five, self-taught guitarist.  Psychologically scarred, however, by childhood sexual abuse, he secretly repaired to a double-locked room above his garage over a five-year period, where he viewed and downloaded images of child pornography.   There was no evidence that he had ever forwarded the images to another, or engaged in any improper conduct with a child. 

A subscriber to a website targeted in an FBI investigation, Polizzi was arrested and prosecuted for possession and receipt of child pornography.  At trial, jury rejected his insanity defense and found him guilty on all counts.  He faced a mandatory minimum prison sentence of five years on the receiving counts. 

When informed after their verdict of the mandatory minimum sentence, three jurors indicated that they would have voted not guilty by reason of insanity had they known of the applicable mandatory minimum, and two other jurors indicated that they believed Polizzi should be treated not incarcerated. 

Failure to Advise Jury of Mandatory Minimums

Building on these jurors’ amended thoughts, Judge Weinstein crafts a compelling opinion that the defendant had a right to have his jury informed in advance of the mandatory sentence riding on their decision.  Reviewing legal and historical scholarship regarding criminal practices in the Thirteen Colonies, the court concludes that trial juries during that period would not only have known of the harsh sentences to be imposed on a finding of guilt, but also "would have been expected to deliver a verdict of not guilty or of guilty of a lesser crime had it believed the punishment excessive for the crime actually charged and proved."

Why should such practices apply today?  “With the advent of mandatory minimum sentences . . . federal juries today again face-albeit often unknowingly –‘either-or’ choices similar to those facing the British and colonial juries of 1791 [i.e. death/transportation/whipping or conviction of a lesser crime]. To fully exercise their historical function, juries today must understand the two eithers; they cannot rely on the court to mitigate because it is bound by the statutory minimum term of imprisonment.”  If juries are not just fact-finders, if they are truly the bulwark that curbs judicial, executive and legislative power - "the conscience of the community and guardian against government oppression ... [and] a 'safety valve' for exceptional cases" - then, Judge Weinstein reasons, juries must be entrusted with complete information regarding the consequences of their actions, including information about their power to dispense mercy through nullification.

Putting aside concerns that hearkening back to the days of the Eighteenth Century would not always be a giant step forward, or that knowledge of mandatory minimums may harden rather than melt jurors' hearts, the Polizzi holding is a persuasive and creative approach to mitigating the severity of mandatory minimum sentences. 

Few expect this decision to survive Second Circuit scrutiny. But Judge Weinstein has his eye on higher courts - the court of public opinion for one, and, of course, the Supreme Court, which given its current ideological make-up, may be more than a little receptive to his call for a return to 1791 and a limited reintroduction of the jury’s power to nullify.   The Supremes may also revisit the issue addressed at the beginning of the Polizzi decision: that the statute at issue is void for vagueness and overbreadth, because it has the potential to criminalize innocent behavior. 

Lack of Scienter

In a nutshell, the Polizzi court finds the statute problematic because it penalizes “knowing” possession and receipt of child pornography, but does not require on its face that the individual "intend" to possess such material. While equating knowledge with criminal intent may work with traditional crimes like possession of stolen goods or drugs, the court points out, this construct fails to account for the myriad ways in which one can inadvertently receive and possess materials via the Internet - "where email may be automatically received, files can instantaneously download themselves, web pages shown for only a fraction of a second are automatically stored, and knowledge can first be acquired after the fact of receipt.”  As one FBI agent put it, the court quotes, "[o]ne click, you're guilty."  In fact, the court claims (perhaps a bit hysterically), that one of its interns refused to conduct certain Internet research on the case for fear of committing a crime. 

It is this significant potential for the statute to penalize accidental and benign conduct that renders it void for vagueness and overbreadth - problems, the court concludes, that cannot be rescued by the stingy safe harbor provision in the statute, or suspect judicial efforts to imply an intent element.  Constrained by precedent to reject the challenge, Judge Weinstein clearly believes this is an area ripe for revisitation by the appellate courts.

Other Challenges

The Polizzi opinion also addresses a number of interesting challenges that, for one reason or another, were inappropriate in this particular case or are foreclosed by current precedent.  They may however prove more fruitful under a different set of facts or in the future as society's perception of these issues evolve:

• Eighth Amendment: Five years for "psychologically stunted man who . . . suffered vicious sexual abuse as a child" and who needs "treatment not a destructive long prison sentence," is undoubtedly cruel, the court concludes, but unfortunately, is not unusual, where "cruelty in punishment is adopted by Congress as policy."  Moreover, although some may find the punishment in Polizzi's case to be "shockingly disparate" - particularly in light of the passive nature of his crime, his psychological disabilities, his low risk of recidivism, and the public "scourging" or registration as a sex offender that awaits him after prison - it is not unconstitutionally "grossly disproportionate" to the crime committed under applicable case-law.  In this context, the court does an interesting analysis of the median sentences meted out by states for similar conduct (producing some very useful material for those seeking to challenge draconian sentencing guideline ranges in child pornography case), and also importantly queries the tendency to lump all sex offenders together when addressing their future dangerousness.  Such conclusions "fail to take into account differences between pederasts and voyeurs."

• Irrationality: Similarly, the five-year mandatory minimum for receipt of child pornography, while a severe penalty for Polizzi's crime, is not irrational, as that term is defined, despite the fact that the possession count does not carry any mandatory minimum.  Congress is not held to "a precise calculus of harm and risk."  Importantly, in this section, the court notes that the evidence regarding whether child pornography actually encourages viewers to commit physical sexual offenses (often presented as a given) is in fact inconclusive.

• Multiplicity:  Conflation of possession and receipt raises a problem of multiplicity (indictment improperly charges a single offense multiple times in separate counts, when only one crime has been committed).  The court did not need to address this issue since it was setting aside the verdict on the receiving counts. 

• Rule of Lenity: This doctrine of statutory construction requires a court to resolve any ambiguity in favor of a defendant.  Unfortunately, the mandatory minimum Polizzi was subject to is totally unambiguous, and does not (but surely should) "contain an implicit reasonableness limitation." 

• First Amendment: The court notes the tension created between First Amendment rights (such as the right to view adult pornography in privacy) and the expansive regulatory and enforcement efforts to curb exploitation of children, and cites several decisions that have struck down child pornography legislation as unconstitutionally overbroad.  One of these decisions, however, was recently overruled by the Supreme Court in United States v. Williams, 2008 WL 2078503 (May 19, 2008) ("pandering" provision of PROTECT Act neither overbroad nor vague).

• Fourth Amendment: The court highlights the tension between legal constructs of what is a "reasonable" expectation of privacy in the online context, and the actual expectations of online users.  In particular, he questions the validity of denying Fourth Amendment protections to non-substantive communications (such as email subject headings and Internet search queries) when the line between content and non-content may be impossible to draw, and thus lead to unduly invasive searches by law enforcement.

• Separation of Powers: The court notes the concern that statutory mandatory minimums have shifted too much power from the judiciary to the executive, but concludes that "on the basis of current precedent," applying the functional approach of analyzing statutes under the separation of powers doctrine, the mandatory minimum prescribed for receipt of child pornography passes muster.  The kicker here is "current precedent," which the court obviously believes needs revisiting. 

This huge decision (not just literally in length, but also in heart and compassion) is a must-read for anyone defending someone charged with possession of child pornography. 

The vast majority of street-level drug sellers in New York are usually prosecuted in state court, where first-time offenders often receive far more lenient treatment than in federal court, and where there is no disparity between crack and cocaine sentences.  This fact motivated a district judge in United States v. Williams, 05-4416-cr, 2008 WL 1836371, (2d Cir. April 25, 2008), to grant a significant below-Guidelines sentence to a defendant who had pled guilty to crack distribution.  Although the Guidelines called for a sentence between 70 and 87 months, she imposed a sentence of 36 months, so that it was "comparable to the sentence Williams would have received had his case not been turned over to federal prosecutors."  Significantly, in estimating the "comparable state sentence," the Court relied on the defense attorney's representations regarding the plea bargaining policy of the Westchester County's D.A.'s office and his own experience.  

The Second Circuit reversed, holding that "[t]he displacement of the Sentencing Guidelines at the threshold, because of a 'personal policy' to conform the sentence to one that would have been imposed in a proceeding in the City of Yonkers, cannot be reconciled with 18 U.S.C. § 3553(a)."  In particular, the Court noted that while § 3553(a)(6) "requires the district court to consider 'the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[,]'" Congress adopted § 3553(a)(6) 'to eliminate unwarranted disparities nationwide'" (my emphasis).  The  Court also expressed concern at the reliance on "the plea bargaining policy of one of sixty-two independently elected district attorneys, rather than the uniform sentencing scheme prescribed by the New York Legislature" and the propriety of relying on hearsay representations regarding the plea and sentence that would have been obtained in state court.

This decision, therefore, would not preclude a district court from relying on a more systematic nationwide analysis of sentences meted out in state courts for similar conduct (see, e.g., Judge Weinstein's comprehensive analysis of state court sentences in child pornography possession cases in United States v,. Polizzi, 2008 WL 877164 (E.D.N.Y. April 1,2008), to be discussed by this blog shortly).  The decision also ignores the selective prosecution issue at the heart of the district court's sentence.

This may, however, be a pyrrhic loss for Williams, and his co-defendant, Schuler.  (The latter's sentence was also reversed, because his sentencing judge - while permitted to take into account co-defendant sentencing disparity - hewed too closely to Williams' sentence "without making his own assessment of an appropriate sentence.")  Recognizing that what motivated Williams' sentencing judge was her desire to ameliorate the crack-cocaine sentencing disparity (she quite rightly called it "baloney"), the Court observed that on remand, the sentencing judge "will have the discretion to consider the crack/cocaine disparity, which has now been narrowed by the Sentencing Commission, in imposing sentence."  In other words, the Court reiterated once again, see here, that a sentencing court may grant more than the two-point guideline reduction authorized under the Guidelines to address the crack-cocaine sentencing disparity.

Illustrating the complexity of striking a balance between liberty interests and public protection in sex offender cases, an EDNY judge imposed a series of restrictive supervised release conditions on a defendant convicted of possession of child pornography in United States v. Porter, 03 CR 129 (CPS), 2008 WL 117839 (E.D.N.Y. January 3, 2008).  They included mental health treatment with polygraph testing, a limit of one personal Internet-capable device, a ban on associating with children under the age of 18, and monitoring through a GPS device and undercover surveillance.

The controversial condition of polygraph testing as a component of sex offender mental health treatment had been approved by the Second Circuit in United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), a case involving someone convicted of sexual predation of minors.  The Johnson court concluded that polygraph testing would help "penetrate deception and encourage an offender to confront his own motivations and behaviors," an observation quoted with approval in Porter.  Neither the Johnson nor Porter courts found a Fifth Amendment problem with the condition, "because [the defendant] can challenge the use of any incriminating statements made during the course of the polygraph examination in any court proceeding."  But having the option to challenge the use of the statements does not mean the challenge will automatically be successful, and neither court addresses the potential success of a challenge to derivative use of such statements or their use in the context of a civil commitment proceeding, where the standard of admission would be lower than in a criminal one.  Moreover, many psychologists would condemn as counter-productive an effort to police the therapeutic process in such an intrusive, minute and unreliable fashion.  While both the Johnson and Porter courts purport to view the polygraph testing as an aid to mental health treatment, in reality, it is less about promoting therapy than keeping tabs.
 
Also of interest in this decision is the court's handling of the Internet access issue.  The defendant would be limited to accessing the Internet through one Internet capable device, loaded with filtering software.  Until Porter acquired such a device, however, the court permitted him to access the Internet at the public library, upon 24 hours notice to his probation officer, and subject to undercover surveillance and a prohibition on disabling the filtering software on the library terminal.  Noting that "the software results in a degree of 'underblocking,'" the court nonetheless held that "accessing the Internet at a public library still provides a controlled environment in which Porter will be least likely to access pornography."

It bears noting that this case involved a violation of supervised release, and a particularly non-compliant supervisee.  The restrictions in the case, therefore, represent a painstaking effort to avoid punishing the defendant with additional incarceration (he was given a four-month prison sentence on the violation out of a maximum two years, and a recommended guideline range of three to nine months), but at the same time diminishing the inclination and opportunities for recidivism.  Porter's (and indeed, Johnson's) non-compliance are strong grounds to oppose the imposition of polygraph testing and GPS monitoring as a matter of routine in sex offender cases.

Dupes may have thought his game was up when he was arrested and prosecuted for possession of child pornography.  But following his conviction and sentence of 27 months, he found himself facing charges of securities fraud arising out a scheme that predated his prison sentence on the sex offense.  Convicted of that too, he apparently gratefully accepted without objection the supervised release conditions the court imposed on the securities fraud conviction, to be spared additional jail-time.  After receiving a below-Guidelines sentence of 38 months, however, reality kicked in, and he realized that some of those conditions – arising mainly out of his sex offense conviction not the securities fraud conviction – were in some ways worse than additional but finite days in a low or minimum security federal facility.  They included an obligation to register as a sex offender if his residence state had such a registry, participate in sex offender treatment, steer 100 feet clear of areas where children congregate, agree to restrictions on his Internet access, and agree to waive his right to privacy in the context of his psychotherapist communications (a waiver that obviously facilitates civil commitment of sex offenders).

On appeal, and applying a plain error analysis, in United States v. Dupes, 05-5522-cr (2d Cir. January 9, 2008), the Second Circuit rejected Dupes’s claim that the imposition of supervised release conditions in connection with his securities fraud conviction but related to his sex offense violated the Double Jeopardy Clause.  Noting caustically and not very realistically in a footnote that “no good deed goes unpunished,” the Court found that the challenged supervised release conditions were an authorized punishment for Dupes’s securities fraud conviction, not a successive punishment for his sex offense conviction: “Each of the conditions . . . is reasonably related to Dupes’s history and characteristics as a sex offender, his need for treatment, and the public’s need for protection from him” and thus were reasonably related to the sentencing factors of 18 U.S.C. § 3553(a), as required for any supervised release condition.

Critically, the Court also rejected the defendant’s claim that the requirement he waive therapeutic confidentiality in connection with court-ordered sex offender treatment exceeds the sentencing court’s authority under 18 U.S.C. § 3583(d) and § 5D1.3(b) of the Sentencing Guidelines.  Dupes pointed out that undermining the confidentiality of his treatment undermined its effectiveness and therefore his rehabilitation.  The Court was not persuaded: “While it could be argued that the waiver condition may retard Dupes’ treatment, it very well may advance his treatment by allowing the probation officer to monitor Dupes’s progress and, if necessary make adjustments to his court-ordered therapy program . . . Moreover, allowing the probation officer access to information about Dupes’s treatment could reasonably further public safety regardless of whether the treatment is effective or not.”  This was perhaps the Court’s delicate way of saying that it allows the probation officer access to information justifying a civil commitment.

Moral of the story – read the small print of the presentence report carefully (Dupes's supervised release conditions were recommended in his PSR), challenge supervised release conditions where appropriate and, in particular in this hysterical era of war on “sexual predators,” take into account, and take appropriate action regarding, potentially devastating conditions related to prior sex offenses.