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HE’S B-A-A-CK

As child porn cases go, this one is midrange seamy. Using some rather sophisticated investigative techniques, one of the federal alphabet agencies tracked a series of anonymous Internet kiddie porn right to the victim’s home. The shocked mom identified your typical sketchy Uncle Ernie-type who had babysat the child, a guy named Nathan Brown. The cops searched his mobile home and found computers with hundreds of thousands of child porn photos and videos, including the series of the girl found on the web.

Nathan pled guilty to three counts of production of child porn, one for each of three kids he had photographed, and argued for the mandatory minimum sentence. The Guidelines, however, called for more. When all of the many enhancements peculiar to child pornography were piled on, Nathan – who had no prior record – had run up an astounding offense level of 54 (reduced to a final score of 51 because he pled guilty). Any score of 43 or over, of course, is life in prison without parole. Because the three offenses of conviction each had a 20-year maximum, the sentencing judge gave Nathan 20 years on each count, consecutive (or “running wild,” as defendants call it) for a sentence of 720 months (60 years).

Yesterday, the 60-year sentence divided a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit for a second time. Last June, the panel sent the case back to the trial court for possible resentencing. The panel said that the trial court may have had an “erroneous understanding” of the facts — including that the judge said Nathan had destroyed the lives of three children, when, in fact, one of the children was asleep when she was videotaped and was thus unaware.

Upon calm reflection, the district judge hammered Nathan with the same 60 years, and the case came back to the 2nd Circuit. Yesterday, two judges on the panel upheld the sentence, with Judge Rosemary Pooler dissenting and Judge Robert Sack concurring.

“Given the seriousness of the crimes,” the Court ruled, 60 years “is within the realm of punishments that this court has upheld as reasonable for production of child pornography.” The decision cited the extraordinary quantity of other child pornography Nathan possessed, the psychological harm he caused to two victims, and what the district court said was Nathan’s lack of true remorse.

Both a concurrence and a dissenting opinion issued in the case merit study. Both raise legitimate questions about the draconian Guidelines sentencing regime governing child pornography offenses (in Nathan’s case, six different sentencing enhancements “catapulted” his Guideline range to 20 levels above kidnapping). As well, the two opinions – while of trifling legal consequence – contain some fascinating observations about imposition of sentences.

Judge Pooler observed that Nathan “Brown could have murdered his victims, and he would not have received a harsher sentence.” She argued that the district court “erred in giving Brown the same sentence for his conduct with respect to the third victim as for his conduct for the other two victims, even though the other two had suffered severe psychological damage, and thus had been harmed far more seriously.” This meant, roughly put, that a third of Nathan’s sentence was based on his having “destroyed” the life of a victim “despite an undisputed lack of evidence that the victim’s life had been affected at all.”

The district judge, engaging in what is all too normal hyperbole, told Nathan that he was “the worst kind of dangerous sex offender.” Judge Pooler said that, while the offenses are serious, the statement was untrue. “Brown did not forcibly rape his victims or subject them to physical harm,” she wrote. “He took pictures of the genitalia of three girls, usually while they were sleeping, by moving their underwear to the side. His offense did not involve penetration, extreme violence, abduction or trafficking.”

Judge Sack said in his concurrence that he was troubled by the sentence imposed by the district court:

The offenses for which the defendant was sentenced after pleading guilty to them involved a deeply disturbing combination of child molestation and the making, watching, and circulation of obscene child pornography. The details of the charged conduct challenge the adequacy of English-language adjectives to characterize them…

To borrow a phrase from death-penalty cases and twist it, child pornography is different. Focusing on subjects that are associated with our most powerful taboos, these cases evoke uniquely strong, if differing, emotional, moral, and cultural reactions from judges, necessarily based on the differing beliefs, values, sensitivities, and life experiences of those judges…

When we go beyond what is necessary to resolve this sort of case… we risk the appearance of explicitly or implicitly voicing our moral indignation rather than exercising our legal judgment, which is of course our only charge.

Judge Sack further observed that “sentencing judges must apply the law to the facts (including the fact of how others have emotionally responded to the crime), not vindicate their own anger and agitation or appear to be doing so… Similarly, part of our job as reviewing judges is to avoid losing our own objectivity or focus because of our own disgust. Because of the reaction such a crime evokes in us and in the trial court, we must be particularly assiduous in assuring objectivity and propriety in assessing the sentence imposed.”

United States v. Brown, Case No. 12‐cr‐145 (2nd Cir., Dec. 6, 2016)