Second Circuit Clerks, Get Ready: Judge Weinstein’s New Opus Concluding Mandatory Minimum For Child Porn Distribution is Unconstitutional (At Least for Younger Defendants)

There are a lot of debates about “judicial activism” in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates. The latest contribution to the Second Circuit’s reversal docket is a 400-page sentencing opinion from earlier this week, United States v. C.R..

At the time of the crimes in question, the defendant was 19 years old. He spent a lot of time collecting and distributing child pornography using peer-to-peer sites. He “collected more than a thousand child pornographic still images and over a hundred such videos” over three years. A lot of the child pornography involved prepubescent children, and generally involved “[p]repubescent and pubescent boys and girls mainly between the ages of ten and seventeen were shown engaged in sexually explicit activities with each other and with adult males.” The defendant’s physical conduct matched his online interests, it seems: His first sexual experience was with his half-sister when he was 16 and she was 9. In the course of using the peer-to-peer networks, the defendant made many child porn videos he had collected available to others in order to distribute the videos to them. The Probation Office calculated a sentence of 168-210 months under the Sentencing Guidelines.

In his opinion, Weinstein decides he won’t apply a lot of the enhancements to get to so a high a sentence. For example, he decides that he won’t apply the required enhancement for using a computer to distribute child pornography because “[v]irtually all of child pornography crimes involve the use of a computer.” Weinstein manages to bring the guidelines sentencing range to 68-73 months. But that’s too high, Weinstein concludes, because “[e]ven a minimum of sixty-eight months in prison would go far towards destroying the defendant as a potential useful member of society.”

So then Weinstein has to confront the 5-year statutory minimum sentence for distributing child pornography. Judge Weinstein concludes that the mandatory minimum sentence is unconstitutional because the defendant, C.R., is a young man, and what he did wasn’t so terrible in context; in light of his youth, a long sentence for him wouldn’t be a good idea. Indeed, it’s such a bad idea it would serve no legitimate interests and is therefore unconstitutional. From page 329 of the opinion (no, that’s not a typo):

Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons. A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age.

A five-year minimum sentence as applied to this defendant serves no legitimate penological goal. ―A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense‖ and therefore, unconstitutional under the Eighth Amendment. Graham, 130 S. Ct. at *2028. Neither ―retribution,‖ ―deterrence,‖ nor ―rehabilitation,‖ Id. at 2028-2029, justifies a five-year mandated prison sentence for an adolescent, plus what could constitute lifelong strict supervised release. Excessive and unnecessary imposition of suffering and destruction of opportunity for a constructive life as a youngster constitutes cruel and unusual punishment.

Judge Weinstein explains that he thinks the appropriate sentence in the case is probation. But in deference to Congress’s judgement that child pornography are serious, he is willing to sentence the defendant to a 30-month prison term, with “a condition of the sentence [being] service of the term of imprisonment at the Federal Medical Center Devens with treatment in the residential Sex Offender Treatment Program.”

One thing is for sure: When the Second Circuit reverses Judge Weinstein, they will do it in fewer than 400 pages.