The Beauty of Mandatory Minimums: You Don't Have to Ask for Them

Rachel Alexander, a prosecutor in the Maricopa County Attorney's Office, defends her office's treatment of Matthew Bandy, the Arizona teenager who initially faced 90 years in prison for nine sexual images of minors on his computer but ultimately got probation for showing his friends run-of-the-mill porn. Alexander seems more on the ball than her boss, Andrew Thomas, who was interviewed for the 20/20 exposé about the case, but it's still hard to escape the conclusion that Bandy's prosecution was overzealous, to put it kindly.

Alexander says her office had strong evidence that Bandy deliberately downloaded the child porn. She makes much of the fact that some of the illegal images had been copied to a CD-ROM. But Bandy's computer experts say the "zombie" software they blame for downloading and uploading the pictures also could have copied them onto the disk, which sat in the computer's CD-ROM drive much of the time. I don't know much about the viruses used by child porn distributors, but it seems to me there was more than reasonable doubt that the the pictures were downloaded on purpose and that Bandy was the one who did so, even if you discount the two polygraph tests he passed (which a jury presumably would not have heard about). In his 20/20 interview, Thomas seemed to concede the possibility that Bandy's contact with child porn was accidental:

I'm content that the appropriate sanction was imposed to hold him accountable, teach him a lesson, teach him that this isn't fun and games. If you're goin' to start playing around on pornographic sites, and you come across child pornography then, you know, you better accept the consequences of that.

Alexander also argues that the much-ridiculed plea bargain her office finally settled on, which involved 18 months of probation for a crime of a sort that apparently has never been prosecuted (showing Playboy to your buddies), was an honest attempt to do justice. "Our office never intended to ask for a sentence of 90 years in prison," she writes. In the 20/20 interview, Thomas likewise said a long prison term was not an appropriate sentence for a first-time offender charged merely with possession, as opposed to distribution, of child pornography.

But 10 years is Arizona's mandatory minimum sentence for possession of pornography involving anyone under 15, which is considered "sexual exploitation of a minor." Each image counts as a separate offense, and the sentences must be imposed consecutively. (See this Arizona Supreme Court ruling upholding a 200-year sentence for possession of 20 images.) The prosecutors did not have to "ask" for a sentence of 90 years; that's the minimum Bandy would have received had he been convicted of the original charges. The "presumptive" sentence would have been 153 years, and the maximum would have been 216.

Let's assume what Alexander means is that her office always expected that Bandy would plead guilty to lesser charges carrying a more appropriate penalty. But according to Bandy's family, the prosecution did not make any plea offers that did not involve prison time until after the defense presented evidence that malicious software may have accounted for the child porn on the boy's computer. Even then, the prosecution insisted on branding Bandy a sex offender, imposing onerous restrictions that would have made an ordinary life impossible had a judge not rejected the label. Even assuming that all of the prosecution's allegations were true, that behavior does not jibe with Thomas's insistence that he wanted to teach Bandy a lesson and give him a second chance.

Here are the 20/20 story, the transcript of the interview with Thomas, my original post on the case, the Wendy McElroy column to which Alexander was responding, the website maintained by Bandy's defenders, and a report from the Maricopa County Attorney's Office responding to their criticism.