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 LOOKING AT A GIFT HORSE

As we reported, President Obama commuted the sentences of 214 federal prisoners last Wednesday. At least 67 of them were serving life sentences, many of those for nonviolent drug crimes. The White House brags that Obama has now granted 562 commutations, more than “the previous nine presidents combined and more commutations than any individual president in nearly a century.”

This is true, but rather misleading. First, while he’s granted a record number of commutations, he’s only issued 70 pardons so far, fewer than any president in the past 120 years. At an average of seven pardons or commutations per month in office, Obama’s numbers are still well under historic norms for most of the 20th century.

The latest commutations are welcome news for criminal justice reform groups. But Obama’s 562 commutations and 70 pardons represent about one-third of 1 percent of the total federal prison population. Only about 25% of the estimated 2,000 inmates meeting clemency criteria have had their petitions granted, and time is very short.

Speaking of no time, The Hill said of the Sentencing Reform and Corrections Act of 2015 last last week that “clearly, the clock is ticking, with little time left on the political calendar this year. Both Senator Grassley and House Speaker Ryan have indicated that they would like to bring the bill to the floor after Labor Day. With a Congress that has been widely disparaged as unable to address serious concerns, enacting sentencing reform would begin to help repair that image while bringing a measure of rationality and compassion to thousands of citizens behind bars.”

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FAMILY FEUD

The 11th Circuit easily has been the most dysfunctional federal circuit when it comes to granting permission to inmates for second-and-successive 2255 motions under Johnson v. United States. The Circuit has spawned more reported decisions on the subject, and those have rarely been shining examples of judicial thought. Earlier this week, three-judge panel issued a decision granting leave for a second-and-successive which was notable for its unbridled criticism of a similar decision of another three-judge panel.

Inmate Devon Chance was given permission to challenge some or all of his many 18 U.S.C. § 924(c) convictions (he got 1,794 months for a string of armed robberies) on the grounds that the “crime of violence” definition in the statute – which contains a residual clause – is unconstitutional after Johnson. That decision alone was hardly remarkable. But what followed was.

The Court complained that “although our published opinions repeatedly have emphasized that the district court is to consider § 2255 motions de novo, in the whirl of orders addressing Johnson, a recent published order [In re Moore] from this Court discussed in dicta what districts courts purportedly ‘must’ do in adjudicating Johnson claims in § 2255(h) motions. The Moore panel acknowledged that ‘the district court is to decide the § 2255(h) issues fresh, or in the legal vernacular, “de novo”.’ But in the very next sentence, the Moore panel seemed to contradict that instruction by telling the district court that it ‘must decide whether or not Moore was sentenced under the residual clause in 2000’.” The panel then added ‘one further thought,’ also in the form of a command about what the district court can and cannot do: that ‘the district court cannot grant relief in a § 2255 proceeding unless the movant… proves that he was sentenced using the residual clause’.”

The Chance decision noted acidulously that “not only is Moore’s dicta just that – dicta – but it also seems quite wrong. Of course,” the Chance court said, “we recognize that what we are about to say has no more legal force than the Moore panel’s commentary (that is: none)… but we think Moore is wrong, for two reasons. First, it implies that the district judge deciding Mr. Chance’s upcoming § 2255 motion can ignore decisions from the Supreme Court that were rendered since that time in favor of a foray into a stale record. Assuming that Johnson does apply to § 924(c)’s “very similar” residual clause, then district courts must determine “‘categorically’–that is, by reference to the elements of the offense, and not the actual facts of [the defendant’s] conduct” — whether that offense qualifies as a crime of violence… In applying the categorical approach, it would make no sense for a district court to have to ignore precedent such as Descamps v. United States and Mathis v. United States, the Supreme Court’s binding interpretations of that approach. And yet, the Moore panel suggested that the sentencing court must ignore that precedent unless the sentencing judge uttered the magic words “residual clause.”

“There is a second problem with Moore’s command that an inmate must prove whether the district court used the words “residual clause” at his potentially decades-old sentencing. Nothing in the law requires a judge to specify which clause of § 924(c) — residual or elements clause — he relied upon in imposing a sentence…”

“Critically,” the Chance decision said, “when an inmate asks a court of appeals to certify a second or successive § 2255 motion, § 2255(h) is our sole source of authority to do or say anything in the case. That means any discussion of topics beyond ‘the § 2255(h) issues’ is irrelevant to a case and therefore dicta.”

In re Chance, Case No. 16-13198 (11th Cir. August 2, 2016)

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NEWSFLASH: 6th CIRCUIT SAYS LAWYERS SHOULDN’T LIE

The government accused Dr. Steve Arny of really being “Doctor Feelgood,” distributing pain meds to his patients willy-nilly, without any legitimate medical basis for doing so. Dr. Arny – a retired military M.D. who had hired on at a pain clinic because he wanted something to do – said while he was not a certified pain management doc, he had followed the practices of the prior pain management physician and made reasonable medical judgments.

A jury disagreed, convicting him of conspiracy to distribute controlled substances “outside the course of ordinary medical practice.” Thinking his defense had been sub-par, Dr. Arny hired new lawyers, who asked for a new trial based on his former lawyer’s ineffectiveness. The district court agreed. The government appealed.

Earlier this week, the 6th Circuit upheld Dr. Arny’s right to a new trial. The Circuit held that ineffective assistance of counsel, an issue usually raised in a post-conviction motion, can provide a basis for a F.R.Crim.P. 33 new trial motion, and it certainly did in Dr Arny’s case.

Before trial, the doc urged his lawyer to call as a witness the Dr. Saxman, the former pain physician, who had not been charged and in fact was still handing out pills at another clinic. His lawyer refused to subpoena her or even talk to her, telling Dr. Arny that Saxman was about to be indicted herself, and her new clinic had been raided.

It turned out his lawyer was making it up: Dr. Saxman was not being investigated, had not been raided, was not about to be indicted, and – had the lawyer cared to interview her – would have said she prescribed pills within the normal course of medical practice and Dr. Arny’s following her lead was fully justified. Her testimony would have given Dr. Arny’s case a real boost.

The government called a few of Dr. Arny’s former patients who were addicts, in order to show that he was dispensing painkillers to drug abusers. The doc begged his lawyer to interview other former patients whose stories would have painted a different picture of a caring, careful physician. His lawyer, however, didn’t bother to talk to any of his former patients. Yet after trial, it only took Dr. Arny’s new lawyers four days to come up with six affidavits from former patients whose testimony, the Court found, would have helped his defense.

Dr. Arny’s original lawyer argued that his failure to call Dr. Saxman was sound strategy, because her patient exam practices were better than Dr. Arny’s. The 6th Circuit rejected this. While a lawyer’s reasonable trial strategy will usually not be second-guessed, the Court said, because Arny’s lawyer did not bother to interview Saxman, “Arny was left without her potentially powerful testimony.” It’s true, the Court said, that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” but Arny’s trial counsel failed to make a reasonable, thorough investigation of Saxman’s potential testimony. “Therefore, trial counsel’s decision could not constitute a reasonable ‘strategic choice’.”

Likewise, the Court said, the failure of Arny’s lawyer to interview former patients was not strategic – “rather, it stems from neglect.” An attorney does not have to interview all potential witnesses, but he or she is required to investigate fruitful leads that a reasonable attorney would pursue. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” the Court said, but such choices made after incomplete investigation are reasonable only to the extent that the lawyer’s reasonable judgment supports the limited investigation. The choice by his lawyer not “to investigate and interview some of Arny’s former patients was an unreasonable decision, which led to the uninformed decision not to call any of Arny’s other patients to testify.”

The attorney’s lie to Dr. Arny that Saxman was about to be indicted wasn’t even close. The Court held it is ineffective assistance for a lawyer to lie to a client.

Concluding that testimony from Saxman and Arny’s former patients who had not been interviewed would have had a genuine impact on the jury, the 6th Circuit upheld the district court’s grant of a new trial to Dr. Arny.

United States v. Arny, Case No. 15-6130 (6th Cir. August 1, 2016)

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PRESIDENT GRANTS 214 MORE CLEMENCY PETITIONS

President Obama commuted the sentences of 214 federal prisoners on Wednesday — the most commutations issued by a president in a single day since at least 1900 — according to White House officials.

The commutations are the latest in a series of such clemency grants issued by Obama since his 2014 announcement of a review process to address those serving harsh sentences to which they would not be subjected if convicted today. With the help of the Clemency Project – a volunteer group of attorneys – began to grant a string of commutations a year ago.

“This is a good day — not just for the 214 individuals who are getting a hard-earned second chance, but for the people at the White House and the Department of Justice and at advocacy organizations across the country who work every day to remedy injustices in our sentencing laws,” White House counsel Neil Eggleston was quoted as saying. “We’re going to keep our foot on the gas pedal when it comes to reviewing applications for clemency, but we are also going to need leaders in both parties in Congress to pass long overdue reforms to our criminal justice system to achieve lasting change on the scale that is needed.”

Including yesterday’s commutations, Obama has granted a total of 562 commutations.

Notably, the commutations included no crimes of violence, no white-collar cases (except a single count of identity fraud connected to drug trafficking), and no sex-related offenses. Based on clemency grants over the past year, it appears unlikely that the Administration has any interest in commutations that are not drug-related.

Most sentences affected in yesterday’s announcement were reduced to release on December 1, 2016.  A few of the life sentences were cut to 240 months or 360 months.  In a handful of cases, commutation was contingent on the inmate entering a drug treatment program. Seventy of the 214 commutations were of life terms.

Despite yesterday’s mass commutation, a backlog remains with under six months until Obama’s term ends. Marc Osler, a law professor and co-founder of the Clemency Resource Center at New York University law school, said in a statement, “While the commutations President Obama granted today are an important step forward, they remind us of how much more work this administration has to do if it is to grant relief for every person eligible… More than 1,500 people are eligible for commutation under the criteria the administration established, but at the current pace, they will fall far short of meeting that threshold. These non-violent offenders have been promised a full review and relief, and they deserve nothing less. We again urge the president to speed up his administration’s review of the petitions it has received and to consider whether there are structural changes to the process that would ensure justice is done for every worthy petitioner.”

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WHO’S THE DOPE?

It should have been a drug user’s legal “dream team.”  Frank Christopher, charged with cocaine distribution, was assigned an attorney who – according to Frank – snorted coke with him something like over 20 times before and during trial. That was the good part. The bad part, Frank said, was that while the lawyer was high, he convinced Frank to reject a 30-month plea deal in favor of trial, which Frank lost.  He got 120 months.

From prison, Frank wrote to his judge complaining that counsel was a cokehead, and had given him bad advice. The district court took the letter to a § 2255, but rejected it without a hearing, finding no prejudice. The Court of Appeals reversed, and sent it back for a hearing. After a 90-minute evidentiary hearing, the district court found that the lawyer had not used cocaine with his client, and threw out the 2255 motion again.

Last Monday, the 6th Circuit Court of Appeals upheld the dismissal. The governing rules are pretty clear: when a trial judge hears live testimony, and selects which witness’s story to believe and which to discount, the decision is pretty much bulletproof. And that’s what happened here.

“Faced with starkly different views of the facts,” the 6th Circuit said, “either one of which has ample evidence to support it, the factfinder’s choice between them cannot be clearly erroneous. In he-said, he-said cases like this one, that means the factfinder does not clearly err in picking one “he” over the other so long as there is support for each account. That is this case… Judge Edmunds stood on firm ground in making this choice. As we recognized in ordering the evidentiary hearing, Judge Edmunds was “in the best position to gauge Christopher’s credibility. And she, not we, had the opportunity… to observe [the attorney] through the pretrial proceedings and the trial. While we review transcripts for a living, she assesses live witnesses for a living, and we must account for this ring-side perspective when reviewing a trial judge’s findings of fact.”

The outcome of this case is a little troubling. Certainly, the evidence suggested that Frank was right. One witness said previously, he had paid the lawyer’s fee in cocaine. Another witness thought he had seen the lawyer using cocaine while representing Christopher, but he admitted his mind was a little fuzzy after a car accident. Frank’s testimony was detailed, and starkly different from the lawyer’s. But the appellate court gave the district judge the deference normally accorded in credibility cases.

The Court of Appeals said, “Once we accept the lawyer’s version of events, that dooms Christopher’s § 2255 motion. It means [the lawyer] never did cocaine with Christopher. It means he reviewed the discovery materials with Christopher and explained that the government would be able to sustain their burden in the case. It means he discussed the plea deal with Christopher “at great length” and “attempted to induce him to plead.” It means he rendered effective assistance of counsel. And it means Christopher’s knowing and voluntary decision to go to trial should be respected, painful though the effects of that decision now may be.”

Christopher v. United States, Case No. 15-2027 (6th Cir.  August 1, 2016)

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YOU DIRTY RAT

No one likes a snitch, which is one of society’s abiding ironies given that so many people – up to two-thirds of all drug defendants – cooperate with the government to get a break on their sentences.

There are still some places – and you have a good idea where – in which informants may experience some pushback, like getting beaten up in the showers, getting their dogs shot, houses burned… that kind of thing. And, as with many things these days, the world of ratting out fellow defendants is changing because of the Internet.

We’re not just talking about whosarat.com (a real website –if you go to rats.com, you’ll end up at a Disney movie site). Instead, we’re referring to the ease with which people can access all sorts of court information that used to be hard to find. Anyone with a PACER account and a defendant’s name has all sorts of detailed information at hand about the case, the plea agreement, and often the cooperation that the defendant gave law enforcement.

The problem is so pervasive, evidently, that a committee of the Judicial Conference of the United States, the administrative arm of the federal judiciary, is calling on all federal trial judges to impose new secrecy rules that would uniformly shield information about cooperators from public view. In a June 30th letter sent to all federal trial judges and clerks, Judge William Terrell Hodges – a federal trial judge in Florida who chairs the Conference’s Committee on Court Administration and Case Management – said “the harms to individuals and the administration of criminal justice in this instance are so significant and ubiquitous that immediate and effective action should be taken to halt the malevolent use of court documents in perpetuating these harms consistent with each court’s duty to exercise ‘supervisory power over its own records and files.”

The problem is particularly acute in prison, Judge Hodges wrote, because “new inmates are routinely required by other inmates to produce dockets or case documents in order to prove whether or not they cooperated. If new inmates refuse to produce the documents, they are punished.” “If they are identified as cooperators after arriving in prison, in many cases the only effective protection available is to move the threatened inmate into a segregated housing unit or solitary confinement,” Judge Hodges wrote.

Currently, each district judge has a personal set of “local rules” designed to keep certain sensitive information out of public view. Some judges will consider motions to seal the records, allowing access only to prosecutors, defense attorneys and court clerks. Others have expansive secrecy provisions that hide a great deal from the public. Some have no hard and fast rules at all, but instead resolve informant issues as they arise.

The Judicial Conference recommends that judges keep a sealed supplement in the record of each criminal case that would contain “documents or transcripts that typically contain cooperation information,” whether there was cooperation or not. After awhile, the theory goes, because all defendants had the same sealed file in their case docket, it would be impossible to tell who narc’ed out his brothers and sisters, and who did not.

Defense attorneys and free speech advocates say that the proposed new rules are bad for at least two reasons. First, they say, creating a sealed annex in every case could deprive the public and media of basic information that goes beyond the issue of cooperation. Second, new rules could have the perverse effect of making life even more dangerous for informants. The existence of a sealed supplement in each case file would mean every inmate was presumed to be a “snitch” unless proven otherwise. Lawyers could appreciate the nuance that everyone had a sealed file, so the file’s existence meant nothing, but this point may be a little too subtle for Snake up on D-Block to appreciate.

A Maine public defender argued that fellow inmates would “assume when it says sealed, this person is an informant.” The proposal, if implemented, “will multiply the number of inmates at risk exponentially without protecting anyone.” This same sealed supplement system now being pitched nationally once tried in Maine. It didn’t work and has been scrapped in favor of the more traditional case-by-case evaluation by judges and lawyers of how best to protect those at risk.

Marshall Report, Is the Internet endangering criminal informants? (August 1, 2016)

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NOTHING NEW UNDER THE HOT AUGUST SUN

With Congress on summer vacation until next month, there is little to report about progress on sentencing reform legislation. As we reported last week, the House and Senate will not reconvene until after Labor Day, at which time there will be only 34 legislative days left in the year for the House, and 43 days for the Senate.

Senate Majority Leader Mitch McConnell (R-Kentucky) has not yet committed to bringing S. 2123 to a vote. According to the website Vermont Digger, Sen. Patrick Leahy (D-Vermont), last week said, “Congress has an historic opportunity to correct some of the worst injustices in our criminal justice system by approving the Sentencing Reform and Corrections Act. This bill is supported by a range of law enforcement and civil rights organizations and a clear majority of Senators. It will begin to bring fairness to our sentencing laws, and it will save us money that can be reinvested into our communities. When we return in September, I hope the Republican Leader will finally allow a vote on this important legislation.”

In the House, however, proponents of criminal justice reform are cautiously optimistic about prospects for a favorable vote to overhaul to the federal prison system before the end of the 114th Congress. Several bills, including the Recidivism Reduction Act of 2016 (H.R. 759) and the Sentencing Reform and Corrections Act (H.R. 3713), have passed the House Judiciary Committee with the support of Judiciary Chairman Bob Goodlatte (R-Virginia) and Ranking Member John Conyers (D-Michigan). House Speaker Paul Ryan has pledged to bring reform legislation to the floor for a vote this Congress.

H.R. 759 includes a number of training and systems changes for the DOJ. Specifically, it directs the BOP to complete a risk and needs assessment for each prisoner, to expand the effective programs it offers and add any new ones necessary to effectively implement the system created by the bill, to phase in the new programs according to a specified schedule, and to develop policies for the warden of each prison to enter into partnerships with specified nonprofit organizations, colleges, and private schools to expand such programs. Finally, it sets procedures for the transfer into pre-release custody of a prisoner classified as having a low risk of re-offending.

The bill is unlikely to pass Congress in the few days left this year. Any bill not passed this year disappears, and legislation has to begin fresh with the next Congress, starting in January 2017. Even if H.R. 759 would become law, a large number of inmates – those with violent offenses, sex crimes, computer crimes, and people with ACCA sentences – would not be eligible to participate.

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KICKING THE CAN

Al Embry was sentenced as a career offender, based on a prior conviction for “wanton endangerment.” After the 6th Circuit held in Pawlak v. United States that Johnson applies to “career offender” sentences, Al asked the Circuit for permission to file a second-and-successive 2255 challenging his sentence.

Last week, the 6th Circuit – clearly wrestling with the issue – kicked the can down the road, holding that Embry should be allowed to file a second 2255 and that the district court should hold the motion in abeyance until the Supreme Court acts on Beckles v. United States.

The Court noted that the right to bring a successive 2255 motion does not turn on circuit authority alone, but instead on whether there is a “new rule” “made retroactive to cases on collateral review by the Supreme Court.” In this case, although Pawlak is a great decision, it is not a Supreme Court decision. The Supremes have not yet determined whether Johnson also dooms the Guidelines’ residual clause, “and there are respectable constitutional arguments that the vagueness doctrine does not apply to the advisory Guidelines.”

When the Supreme Court decides Beckles v. United States next term, “we should have answers to the pertinent questions: Does the vagueness doctrine apply to the advisory Sentencing Guidelines? If so, is that a new rule or one dictated by Johnson, and does the decision apply retroactively? Through it all, does the Court’s decision resolve, or help to resolve, the lurking statute of limitations question? With so much in play, the most important question may be a practical one: Where to set the queue for all of the “Johnson” motions that target sentences affected by the residual clause of the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2)? In the court of appeals? In the district courts? Or in the offices of public defenders and the defense lawyers by rejecting the motions now? All things considered, it makes the most sense to grant the gatekeeping motions, send the cases to the district courts, and ask the district courts to hold the cases in abeyance pending the Supreme Court’s decision in Beckles. After the Supreme Court resolves some or (hope springs eternal) all of these questions, the district courts will be well positioned to handle these cases fairly and efficiently.”

In re Embry, Case No. 16-5447 (6th Cir.  July 29, 2016)

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VIVA LA DIFFERENCE

Finding “clear and notable differences” between violent career offenders and drug-only career offenders are The U.S. Sentencing Commission yesterday issued a report on Sentencing Guidelines “career offenders” which recommended nothing less than a wholesale rewrite of the provision to eliminate use of drug trafficking offenses as a basis for applying the enhancement.

Currently, a defendant qualifies as a career offender if he or she is convicted of a violent or drug offense, and has at least two prior similar felony convictions. Career offender status imposes dramatically longer Guidelines sentencing ranges, with a career offender receiving an average sentence of over 12 years. Unsurprising, as a result, career offenders now account for more than 11% of federal prisoners.

Another unsurprising finding is that prosecutors use imposition of “career offender” status as a stick. Defendants facing draconian career offender sentences often elect to cooperate. During the past decade, the percentage of career offenders sentenced within their applicable guideline range has decreased from 43% to 28%, while government-sponsored departures have steadily increased from 34% percent to 46%.

The USSC study found that there’s a real difference between career offenders whose offense of conviction or priors offenses are violent crimes and those whose career offender status arises from drug offenses. The “violents” generally have a more serious and extensive criminal history, re-offend at a higher rate than drug career offenders, and are more likely to commit another violent offenses in the future.

The Report says that drug-only career offenders, on the other hand, are “not meaningfully different from other federal drug trafficking offenders and should not categorically be subject to the significant increases in penalties required by the career offender directive.”

The Report called on the USSC to amend Chapter 4B of the Guidelines to “differentiate between career offenders with different types of criminal records, and… focus[] on those offenders who have committed at least one ‘crime of violence’.” At the same time, it called on Congress to adopt a “single definition of the term ‘crime of violence’ in the guidelines and other federal recidivist provisions… to address increasing complexity and to avoid unnecessary confusion and inefficient use of court resources.”

It remains to be seen if the Report’s conclusions result in Sentencing Commission action to change the “career offender” Guidelines, and – more important to the 20,000-plus “career offenders” now doing time – whether any such changes become retroactive.

United States Sentencing Commission, Report to Congress – Career Offender Sentencing Enhancement (July 28, 2016)

PRESSES ROLLING AT USSC

In other Sentencing Commission action, just before the bureaucrats beat feet for the mountains and beaches for August, the USSC has just issued a Supplement to the 2015 Sentencing Guidelines Manual incorporating the change in the “violent crimes” definition adopted last January.  The change resulted from the Supreme Court’s Johnson v. United States decision in June 2015, that declared the residual clause of 18 U.S.C. § 924(e)(2)(b)(ii) to be unconstitutionally vague.

Congress had six months to reject the proposed change, but of course did not.  The change becomes effective on Monday, August 1, and affects, among other sections, the “career offender” provisions
of Chapter 4B.

U.S. Sentencing Commission, Supplement to 2015 Sentencing Guidelines Manual (July 29, 2016)

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JUDGE BLASTS PORN SENTENCING GUIDELINES

Shawn Cheever is the kind of guy who gives Wastrel P. Gravesite a bad name. He had a petty criminal record as long as Reed Richard’s arm, includes 11 prior felony convictions for forgery, fraud, assault, drug possession, and criminal impersonation. He was known to have used at least seven different aliases. At age 45, he has been sentenced many times to halfway houses and probation, and in all but one instance failed to conform to the rules and ended up in jail or prison. Twice, he was given a deferred conviction, and twice the deferrals were revoked and he was convicted.

Finally, the Feds caught up to him, nailing him for possession of child porn. Like over nine out of ten defendants, he entered a guilty plea to a mandatory 10 year sentence. So far, pretty typical, and anyone can see where this is headed. The sentencing judge is going to hammer this mutt, right?

If that’s all that Senior District Court Judge John Kane had done, there would be nothing to write about, because defendants being hammered in federal court – especially child porn defendants – happens on a daily basis. But instead, Judge Kane issued a 40-page sentencing opinion arguing that the sentencing guidelines for child pornography possession cases are greater than necessary, and not based on studies, statistics, or other bases to explain or justify why the mandatory minimum of 10 years was enacted or whether any other term was considered.

The Judge complained that a sentence of five years — “if permitted” — would allow Shawn to participate in BOP programs that would ensure his safe release with a minimal risk of recidivism.

Judge Kane wrote that “punishment is an unpleasant subject and its efficacy in many cases is questionable. Nevertheless, punishment is an integral part of the sentencing constellation. The noted English jurist, Lord Justice Denning, called punishment “the emphatic denunciation by the community of a crime.” When imposed in public with stated reasons expressed, punishment reinforces the community’s respect and declaration of its moral and legal standards and for that reason is justifiable. When imposed, however, in secret or without rational justifications, it becomes more mocked than feared. As stated by Thomas Jefferson, ‘[I]f the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed’.”

“Arbitrary punishments,” the Judge continued, “are just that and serve little, if any, positive purpose. Even the utilitarian assertion that punishment serves a positive purpose is mitigated by its proviso that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order. Ironically, the revulsion widely felt about crimes involving child pornography is exacerbated by the utter lack of empathy shown to the child victims by the offenders. That callousness alone is a factor that increases the proportional measure for punishment.”

The Judge noted that the collateral consequences of the sentence extend far beyond the end of the prison term. “Once released, a prisoner in the United States is frequently barred from the very aspects of law-abiding citizenship that rehabilitation and reform are intended to achieve. A released prisoner is frequently denied the right to vote, the right to sit as a juror and the right to participate in or hold elective office. The released prisoner is barred from numerous entitlements such as public housing, pensions, disability benefits, and perhaps schooling, food and health care. Some public employment is barred and employment in the private sector is exceedingly difficult to obtain. Some companies involved in contracts with the government are likewise prohibited from employing convicted felons. Most released offenders do not receive any assistance in gaining employment or subvention until a legitimate income is received. Small wonder that recidivism is the rule rather than the exception.”

Judge Kane is one of a small but growing cadre of jurists that have denounced child pornography sentences as being unduly severe and unrooted in logic. Last February, we reported on E.D.N.Y. Judge Jack Weinstein sentencing a similar defendant to 5 days in jail in United States v. R.V., Case No. 14-CR-0316 (E.D.N.Y., Jan. 22, 2016). Others have done so, too, but the trend is years away from being a tsunami.

United States v. Cheever, Case No. 15-cr-00031-JLK (D. Colo. Jul 18, 2016)