Judge Battles Child Pornography Mandatory Minimum Sentence He Considers Unjust

With momentum building for sentencing reform and federal judges among the most avid supporters of rolling back harsh mandatory minimum sentences, one judge is standing up for lower sentences for a particularly controversial category of defendant — those guilty of child pornography offenses.

As with other offenses, lawmakers have ratcheted up the sentences for child pornography sentences — including for online possession. And some judges have insisted that, as reprehensible as the offense can be, long prison terms are not the answer.

In 2011, New York federal judge Jack B. Weinstein took a stand on this issue in a 401-page opinion with 55 pages of appendices in which he found that a five-year sentence for a teen who pleaded to one count of distributing child pornography was unconstitutional cruel and unusual punishment under the Eighth Amendment. He instead sentenced C.J. to 30 months in prison and five months of supervised release. In reaching this conclusion, Weinstein heard from 12 experts in child sexual abuse, online child pornography, and adolescent brain development. He also visited a facility that treats sex offenders.


He wrote in that decision: “This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.?”

He found that C.R. “never produced, sold or deliberately exchanged pornography.” C.R. did admit to downloading “a ton” of pornography and sharing those files via an automatic file-sharing computer program. “This widely available electronic system gave others access to his home computer,” Weinstein wrote.

This week, a federal appeals court unanimously overruled Weinstein, finding that the imposition of the mandatory minimum sentence did not even approach cruel and unusual punishment. They also noted that Weinstein should have considered C.J.’s admission that he engaged in sexual activities with his half-sister when he was between the ages of 15 and 18 and she was between the ages of eight and 11 — a significant factor outside the scope of C.J.’s plea deal.

The panel wrote, “As Congress, courts, and scholars all recognize, child pornography crimes at their core demand the sexual exploitation and abuse of children. Not only are children seriously harmed­ — physically, emotionally, and mentally — in the process of producing such pornography, but that harm is then exacerbated by the circulation, often for years after the fact, of a graphic record of the child’s exploitation and abuse.”

Weinstein reacted Thursday with an 11-page response in which he again reiterated his opposition to the mandatory minimum sentencing scheme before agreeing to comply with the appeals court order to re-sentence C.J. Noting that there is a “large scale” of culpability for child pornography producers, with producers on the one end, to adolescent consumption on the other, Weinstein writes, “There is a growing consensus among those responsible for enforcing our criminal law: It is unacceptable in this good and great country to continue unnecessarily sacrificing the lives of so many of our young through excessive mandatory prison sentences.”


Weinstein’s policy arguments aside, he likely knew his finding that the sentence was cruel and unusual would be overruled. Even the death penalty remains an acceptable form of punishment in the United States. The battle nonetheless raises policy questions as lawmakers consider reform to mandatory minimum sentences.

An extensive U.S. Sentencing Commission study of child pornography sentences in 2012 found that current federal guidelines produce “overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and widespread inconsistent application.” And research suggests that a mix of punishment and treatment could better deter some future offenses. But one study that has since been subjected to immense scrutiny suggested there is a correlation between pornography consumption and molestation.

Defendants have received much harsher sentences than C.J. In 2011, a Florida judge doled out a life sentence for child pornography possession — counting each item as a separate possession count punishable by up to five years in prison.

But Weinstein is not the only judge to publicly decry child porn sentencing. Earlier this year, a federal judge in Columbus, Ohio, defied recommended sentencing guidelines for child pornography possession and sentenced a 70-year-old defendant to three years of home confinement rather than time in prison. The defendant had no criminal record, and Judge James L. Graham said time in prison could amount to life in prison for the ill man. The U.S. Sentencing Commission found a pattern of judges doling out lower sentences for child pornography over the last several years, even as the average sentence remains more than a decade.