The arrests and convictions are
in the news every week, and
often the details make us
cringe. In most cases, the
bottom line is that some guy
has been caught with child
pornography on his computer.
Just last week, David Besaw, of
Newington, was sentenced to 32
months in prison by U.S. District
Judge Stefan Underhill for possessing
child porn. Earlier in the year, Kevin
Davis, of Putnam, was sentenced to
just under four years by Chief U.S.
District Judge Alvin Thompson for
possessing the graphic sexual images
involving children.
In April, Judge Vanessa Bryant
sentenced William Golia, of New
Haven, to five years in prison for the
same crime. A month earlier, Judge
Janet Bond Arterton sentenced an Old
Saybrook man, Joseph Rock, to 6 ½
years behind bars for child porn
possession.
And last year, Judge Robert Chatigny
sentenced Roger Chapell of
Manchester to 14 months for
possessing the child porn.
This is but a small sampling, but it
makes two things clear: Child porn
convictions are distressingly common.
And sentences are not very
consistent.
Such sentencing disparities –
especially when it comes to child porn
and white-collar financial crimes –
have prompted the U.S. Department
of Justice to call for “a comprehensive
review” in its most recent report to the
U.S. Sentencing Commission.
In the five years since the U.S.
Supreme Court struck down
mandatory federal sentencing
guidelines, the Justice Department
said prosecutors’ experiences and
data “suggest that federal sentencing
practice is fragmenting into at least
two distinct and very different
sentencing regimes.” To put it simply,
those regimes consist of judges that
adhere to the discretionary sentencing
guidelines and those who tend to go
their own way.
If left unaddressed, the Justice
Department said in its report, the two
regimes “will lead to unwarranted
sentencing disparities, disrespect for
federal courts and sentencing
uncertainty that could lead to more
crime.”
Different Images
Longtime New Haven defense
attorney William F. Dow III, of Jacobs,
Grudberg, Belt, Dow & Katz, handles
many of the child porn cases. He’s
noticed sentencing disparities in
Connecticut, and said it may reflect a
change in thinking on the part of some
judges.
“I think what’s happened is judges
have realized that looking at child porn
does not equate to an action of
molesting children,” said Dow.
“There’s no direct connection between
someone looking at child porn and
going out and taking advantage of
children in a sexual way. I think it’s
recognized more as an emotional or
mental health issue and I think judges
are more receptive to arguments
addressed to those aspects to the
problems.”
To be sure, all federal child porn cases
are not alike. At the low end is
possession of child pornography,
where the sentencing guidelines are
voluntary and judges’ discretion most
often comes into play.
For more serious charges, Congress
has instituted mandatory minimum
sentences, which were not affected by
the 2005 Supreme Court ruling. And
so receipt of child porn (where the
defendant is caught in the act of acquiring the images, usually through
an Internet download) has a
mandatory minimum sentence of five
years. The mandatory minimum for
distribution is 10 years, and
manufacturing it brings an automatic
15-year sentence.
But in cases where judges have
options, Hartford attorney M. Hatcher
“Reese” Norris, of Butler, Norris &
Gold, said there’s often a good reason
why one child porn defendant is
sentenced more harshly than another.
“Some of the sentences may have
involved a different number of images
and different types of
images...sadomasochistic...that
obviously has an impact... so it’s hard
to put them all in one category,”
explained Norris.
Defense attorney K. Murray Smith, of
Pattis & Smith in Bethany, said he
would like to see judges have even
more discretion in cases where
mandatory minimums now apply.
Smith compared the debate over child
pornography sentencing to that
surrounding the crack cocaine
sentencing guidelines enacted in the
1980s.
Back then, laws called for giving
longer sentences to those convicted of
crack possession than those who had
powdered cocaine. Many judges
began to question the logic. In 2007,
the U.S. Sentencing Commission
reduced the federal sentencing
guidelines for crack cocaine offenses.
Smith said he’s seen defendants get
longer prison terms for child
pornography than violent crimes. “If
you’re not directly involved somehow
in producing this stuff...five years for
simply possessing, sometimes for a
small number of images...phew. Boy
that is a harsh, harsh sentence,” said
Smith. “What it does to [the
defendant’s] reputation, their families it
tears them apart.”
Not everyone is pleased that judges
are increasingly using their own
discretion. Although the U.S.
Attorney’s Office in Connecticut did
not respond to requests for comment
on this article, some of its prosecutors
have formally objected to some of the
recent sentences.
In March, Assistant U.S. Attorney
Peter Jongbloed objected when Judge
Underhill sentenced Michael Anderson
of Morris to three years in prison for
possessing child pornography.
Jongbloed sought the sentencing
guideline range of 6 ½ to about 8
years.
“The guideline sentences are certainly
astronomically high and just way out
of proportion to the criminal charge,”
said Dow. “That’s not to say this is
pleasant stuff or children aren’t being
exploited but child pornography
standing alone is a disquieting quest
that is inevitably pursued by people
who have some emotional or mental
health deficits.”
Dow described the typical child
pornography defendant as “sad sacks,
lonely and despondent people.”
One-Man Crusade
A U.S. district judge in Brooklyn, Jack
B. Weinstein, is on a personal crusade
to see the sentencing structure for
child pornography come down. He
describes the mandatory minimums as
“unnecessarily harsh and cruel.”
Weinstein has twice recently thrown
out convictions that carried a
mandatory five-year minimum
sentence; he now tells jurors, before
they deliberate, what the sentencing
range will be for defendants found
guilty. Weinstein started this policy
after one jury acknowledged it would
not have voted to convict if it knew the
defendant would go to jail for five
years. When that happened,
Weinstein, 88, ordered a new trial.
Prosecutors have appealed his
actions in these cases.
The issue of discretionary sentencing
has been in the political spotlight in
Connecticut, where Judge Chatigny
has been accused by some
conservatives of handing out light
sentences in sex crime cases. This
came to light after Chatigny was
nominated for the 2nd Circuit Court of
Appeals.
“More and more, we are receiving
reports from our prosecutors that, in
many federal courts, a defendant’s
sentence will largely be determined by
the judicial assignment of the case;
i.e., which judge in the courthouse will
conduct the sentencing,” said
Jonathan Wroblewski, director of the
Criminal Division’s office of policy and
legislation, in the Justice Department
report.
Norris said lawyers aren’t sitting
around strategizing as to how to get
on a certain judge’s docket in the
federal child pornography cases
because one is perceived as so much
more lenient than another.
But Dow admitted: “Yes, a particular
judge can make a difference in terms
of sentence,” but said that’s the case
with all sorts of crimes, and not just
child pornography.