United States v. R.V., 14–CR–0316
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
| Writing for the Court | JACK B. WEINSTEIN, Senior United States District Judge |
| Citation | 157 F.Supp.3d 207 |
| Docket Number | 14–CR–0316 |
| Decision Date | 21 January 2016 |
| Parties | United States of America, v. R.V., Defendant. |
157 F.Supp.3d 207
United States of America,
v.
R.V., Defendant.
14–CR–0316
United States District Court, E.D. New York.
Signed January 21, 2016
Peter W. Baldwin, United States Attorney's Office, Eastern District of New York, 271 Cadman Plaza East, Brooklyn, NY 11201, 718–254–7000, peter.baldwin@usdoj.gov, for United States.
Len H. Kamdang, Federal Defenders of New York Inc., One Pierrepont Plaza, 16th Floor, Brooklyn, NY 11201, 718–407–7414, len_kamdang@fd.org, for Defendant.
Statement of Reasons for Sentencing Pursuant to 18 U.S.C. § 3553(c)(2)
JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents
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
a. Transition to Child Pornography...218
b. No Physical Threat to Children...220
c. Recidivism Risk...221
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
a. Broadband Revolution...228
b. Rise of Mobile Connectivity...229
c. Rise of Social Media...230
d. Emergence of the Cloud...231
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
F. Effects of Excessive Punishment on Defendants and Families...242
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
1. Section 3553(a) Factors...250
2. Departures Based on Section 3553(b)(2) Factors...251
3. Departures Based on Disagreement with Commission Policy...252
4. Departures: Statement of Reasons Required...252
D. Restitution...253
VII. APPLICATION OF LAW TO FACTS...254
A. Guidelines Sentencing Range...254
B. Analysis of Section 3553(a) Factors...254
1. Nature and Circumstances of Offense; History and Characteristics of Defendant...254
2. Purposes of Sentencing...255
3. Kinds of Sentences Available...258
4. Guidelines, Policy, and Other Criteria of Sentencing Commission...258
5. Unwarranted Sentence Disparities...260
a. Increased below-Guidelines sentences in non-production cases...260
b. Increased non-prison sentences in possession-only cases...264
6. Restitution...265
C. Policy Considerations...265
VIII. CONCLUSION...267
I. Introduction
A. Varying Degrees of Culpability of Child Pornography Offenders
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
is often unfair, unreasonable, cruel, and conceptually deficient.
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.
• Possession-only child pornography users: This category includes those viewers and consumers of child pornography who download images of child pornography. It frequently includes individuals with the lowest degree of culpability. Often, defendants in this category do not have the mens rea threatening actual contact with a minor.
• Possession and involuntary distribution: This category comprises those individuals who possess child pornography they downloaded and are deemed to have engaged in distribution due to the nature of the technology used for downloading the
images. The individuals in this category may not intend to distribute child pornography. For example, this category would include child pornography users who download images via peer-to-peer file sharing sites which may render files automatically accessible to others....
• Possession with intentional distribution: This category comprises those individuals who possess and intentionally distribute child pornography to other users, but not for commercial gain. Offenders in this category display a higher
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...offenders may be low, with most child pornography viewers unlikely to engage in future sexual offenses." United States v. R.V. , 157 F.Supp.3d 207, 240 (E.D.N.Y. 2016).These studies are not the end of the matter. Actual recidivism may be higher than known recidivism, given the underreportin......
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United States v. D.W., 13-CR-173
...of defendants "frequently represent [s] the worst and most dangerous type of offender." United States v. R.V. , No. 14–CR–0316, 157 F.Supp.3d 207, 210, 2016 WL 270257, at *2 (E.D.N.Y. Jan. 21, 2016).Substantial punishment is warranted. First, and most importantly, the public needs to be pro......
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United States v. E.L., 15-CR-137
...(2) acquisition of these images encourages abuse of children in their production since viewers create demand." United States v. R.V. , 157 F.Supp.3d 207, 209, 2016 WL 270257, at *1 (E.D.N.Y. Jan. 21, 2016).No mandatory minimum applies to the instant offense. The sentencing factors under sec......
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United States v. Jones, No. 17-1450
...government's figure was based on documentation mostly prepared by "Vicky's" lawyer, while the defense relied on United States v. R.V., 157 F. Supp. 3d 207 (E.D.N.Y. 2016), where the Eastern District of New York had recently awarded "Vicky" $2,000 in restitution. The district court took the ......
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United States v. Pyles, No. 14-3069
...offenders may be low, with most child pornography viewers unlikely to engage in future sexual offenses." United States v. R.V. , 157 F.Supp.3d 207, 240 (E.D.N.Y. 2016).These studies are not the end of the matter. Actual recidivism may be higher than known recidivism, given the underreportin......
-
United States v. D.W., 13-CR-173
...of defendants "frequently represent [s] the worst and most dangerous type of offender." United States v. R.V. , No. 14–CR–0316, 157 F.Supp.3d 207, 210, 2016 WL 270257, at *2 (E.D.N.Y. Jan. 21, 2016).Substantial punishment is warranted. First, and most importantly, the public needs to be pro......
-
United States v. E.L., 15-CR-137
...(2) acquisition of these images encourages abuse of children in their production since viewers create demand." United States v. R.V. , 157 F.Supp.3d 207, 209, 2016 WL 270257, at *1 (E.D.N.Y. Jan. 21, 2016).No mandatory minimum applies to the instant offense. The sentencing factors under sec......
-
United States v. Jones, No. 17-1450
...government's figure was based on documentation mostly prepared by "Vicky's" lawyer, while the defense relied on United States v. R.V., 157 F. Supp. 3d 207 (E.D.N.Y. 2016), where the Eastern District of New York had recently awarded "Vicky" $2,000 in restitution. The district court took the ......