Tuesday, April 12, 2011

U.S. v. Apodaca (9th Cir. - April 12, 2011)

Child pornography is the new crack cocaine.

By that, I don't mean it's incredibly addictive.  (Though with voyeurs with a penchant for this stuff, perhaps that's true as well; I just don't know.)  I instead mean that it's the latest area in which the federal courts have begun to realize and articulate that the sentencing guidelines are just plain wrong -- and unjust -- and have started to respond accordingly.  And, as with crack cocaine, I believe that you'll see institutional changes as well as changes at the case-specific level.

We used to punish crack cocaine incredibly more severely than powder.  Why?  Because it was minorities who got the raw end of the deal, so we didn't care.  But eventually, the law responded.  After, mind you, a plethora of people were incarcerated for excessive periods.

We currently punish what we call "internet only" child pornography fans the same way.  If you're convicted of possession of child pornography because you're caught looking at this stuff over the internet, the guidelines generally tell judges to throw you into jail for six to nine years, as well as to impose a lifetime of supervised release where, for example, you can't have any contact with any children.  Ever.  These sentences may make sense for certain sex offenses, like child molestation, where there's an incredibly high recidivism rate.  But the Sentencing Commission simply assumed that sex crimes result in sex crimes; e.g., that someone who's caught looking at child porn over the internet is likely to actually molest children later.  Except that it's just not true; in fact, an incredibly small number of offenders in fact so reoffend.

Federal judges have started to realize this.  At least the ones who care.  And at least after the guidelines became advisory (remember; formerly, they were essentially mandatory).  Resulting in numerous departures from the guidelines.  Including the one at issue in this case, where the guidelines called for six to eight years in prison but Judge Pregerson only have two.

Two problems.  First, not all judges are nearly as sympathetic -- or informed -- as Judge Pregerson.  Or as willing to depart downward from the guidelines, especially in these types of cases.  (And let me assure you that the number of downward departures in kiddie porn cases would be far lower if, as in California state court, federal judges were subject to contested elections.)

Second, even when you've got a sympathetic judge, even they may go along with at least part of what the guidelines say; for example, here, the lifetime supervised release requirement.  So you might think that people like Apodaca would be thankful that he only got two years in prison, as opposed to eight or nine.  And I'm sure he is.  But he's still bummed that he can never talk to anyone under eighteen again.  So he files an appeal, arguing that this sentence is grossly disproportionate to his crime, particularly given the truth about reoffenders in the "internet-only" category and the studies on this issue.

But he loses.  Not because the Court of Appeals is unsympathetic.  It is.  Judge Cudahy -- sitting by designation from the Seventh Circuit -- writes a majority opinion (joined by Judge Wardlaw) that makes clear that the punishment recommended by the guidelines seems harsh.  Judge Willie Fletcher writes a separate concurrence that makes this point even more strongly.  If you want to see opinions that do a great job of using empirical studies and publicly-available social science information to inform their views, read these two.  They're extremely good.

But even for these judges -- and there are many more judges on the Ninth Circuit who'd be less willing to express sympathy with a kiddie-porn defendant than Judges Cudahy, Wardlaw and Fletcher -- that's not a basis to reverse.  The guidelines say X.  Procedure was followed here.  It may be overly harsh, and even in a case like this, potentially unjust.  But it's not unconstitutional.  So the only thing they can do is to advise the Sentencing Commission to get its act together on this issue sooner rather than later.  As it did, again, with crack cocaine.  Another area in which the fact that the individuals victimized by an overly harsh sentencing scheme were "others" that we didn't care all that much about.

I'm optimistic you'll see changes.  In part due to opinions like these.  But as with many things, those changes will take time.  With overly harsh sentences in the interim.

So, in short, don't view kiddie porn.  Not only because it's wrong to do so.  Which, parenthetically, it totally is.  They're kids, for goodness sake.  That sort of stuff should gross you out, not turn you on.

But if for some reason your brain is erroneously wired, resist the temptation.  Not worth the time in prison.  Especially not now, and even after eventual changes in the guidelines, not worth it then either.