Child-Porn Sentencing Questioned by Judges

     (CN) - Two 9th Circuit judges have questioned the long sentences that federal courts hand normally law-abiding people who might download child pornography because of ignorance or psychological problems. The comments came Thursday as concurring opinions in a ruling upholding the child pornography conviction of a first-time offender.
     While the unanimous ruling written by Circuit Judge Mary Murguia supports both the district court's handling of the evidence used at trial and the conviction, Circuit Judges Stephen Reinhardt and John Noonan took issue with a federal sentencing scheme that resulted in a 10-year sentence for Lawson Hardrick Jr.
     "I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography. I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer," wrote Circuit Judge Reinhardt.
     After Hardrick was convicted on two counts of knowingly receiving a visual depiction of a minor engaged in sexually explicit conduct, he appealed to the 9th Circuit. He argued that the district court mishandled evidentiary references to videos for which he was not charged but that federal agents found on his computers.
     California Southern District Judge Marilyn Huff had allowed the state to use the uncharged videos at trial, and the 9th Circuit found that she had properly narrowed their use.
     Huff restricted the references a testifying federal agent could make to the videos and refused to show the videos to the jury, making the state rely on the probative value of their file names and details about when and how they were downloaded to Hardrick's computers.
     The 9th Circuit found that the judge correctly decided to give the jury an instruction that limited the ways they could consider the videos in deliberations.
     The probative value of the videos "outweighed the danger of unfair prejudice to Hardrick was not an abuse of discretion," according to the 9th Circuit ruling.
     "The uncharged videos were probative of Hardrick's knowledge and relevant to his defenses either that he downloaded the videos accidentally while downloading legal pornography or other files on LimeWire, or that a hacker had downloaded the videos to his computer," the circuit wrote.
     As to the conviction, the 9th Circuit found that circumstantial evidence was sufficient to support the jury's verdict despite an absence of direct evidence that Hardrick had downloaded or watched the child pornography files.
     The computers that held the files were under his exclusive control, while the number, timing and location of the downloaded files belied his claims that he had accidentally downloaded them or that a hacker placed them there, the ruling states.
     Judge Reinhardt used his concurring opinion to voice his concerns "about the practical impact of the child pornography laws upon otherwise law-abiding individuals."
     Reinhardt said it was his "view that 'psychological impairment' is in most, if not all, cases the cause of the criminal conduct."
     "Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now. Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution."
     Reinhardt had no sympathy for those who produce or distribute child pornography for money. "Those individuals are ordinarily motivated by wholly selfish interests that they are perfectly capable of controlling.
     "In contrast, those who only view child pornography," he said, "including those who exchange video computer files, are in all likelihood the victims of a form of mental illness that prevents them from controlling what they would otherwise understand to be not only unhealthy impulses but impulses that result in great harm to the most innocent members of our society."
     Reinhardt said the problem of child pornography deserves more attention, but that handing down long sentences to defendants like Hardrick will not end child pornography.
     Such sentences serve only to "to create another class of people with ruined lives - victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner."
     Circuit Judge John Noonan averred that the government might do more to publicize the severity of the crime of child pornography and the punishments.
     "Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but 'include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.'" Noonan wrote, citing a Department of Justice document and echoing Reinhardt.
     "Obviously, lack of criminal history is not a defense." But he added: "It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment ... could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions.
     "Why should the government not advertise the law and its penalty? Better to stop a crime's commission than mop the consequences."