Sex Crimes

Appeals Court Rejects 'Shockingly High' 19-Year Sentence for Child Porn Collection

The 2nd Circuit says the recommended prison term was "substantively unreasonable."

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When Joseph Jenkins went on vacation in May 2009, he brought his collection of child pornography with him. That decision led to a prison sentence so severe that a federal appeals court yesterday deemed it "substantively unreasonable" in a decision that shows how mindlessly punitive federal sentencing guidelines for child pornography offfenses have become.

Canadian border agents found Jenkins' child pornography on a laptop and a thumb drive as he was driving from his home in Geneva, New York, to his parents' summer house in Quebec. After Jenkins skipped bail in Canada, he was charged under U.S. law. In 2014 he was convicted of possessing and transporting child pornography, and a federal judge sentenced him to nearly 19 years in prison, followed by 25 years of supervised release. Given the nature of Jenkins' crimes, the U.S. Court of Appeals for the 2nd Circuit ruled, the judge "went far overboard."

The 2nd Circuit's decision illustrates the impact of congressional edicts that call for stiff sentencing enhancements based on factors that are routine in child pornography cases. Jenkins' criminal history was limited to a single misdemeanor, he did not produce or distribute child pornography, and his crimes did not involve contact with minors. Yet U.S. District Judge Glenn Suddaby calculated that the recommended sentence was 210 to 262 months, thanks mainly to enhancements for using a computer, for possessing more than 600 images (with each video counting as 75 images), for possessing images of prepubescent children, and for possessing images featuring masochistic, sadomasochistic, or other violent content. "These enhancements," the 2nd Circuit notes, "have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child."

That's right: If Jenkins had raped a child, his recommended sentence would have been shorter than the one he got for trying to carry pictures of such crimes into Canada for his own personal viewing. Furthermore, the factors that boosted Jenkins' sentence are extremely common in child pornography cases. "In 2014," the court notes, "95.9% of defendants sentenced under [the provisions dealing with possession and distribution of child pornography] received the enhancement for an image of a victim under the age of 12, 84.5% for an image of sadistic or masochistic conduct or other forms of violence, 79.3% for an offense involving 600 or more images, and 95.0% for the use of a computer."

These are not enhancements so much as excuses for a general increase in punishment. In a 2012 report, the U.S. Sentencing Commission concluded that "the current non-production guideline warrants revision in view of its outdated and disproportionate enhancements related to offenders' collecting behavior."

In the meantime, judges are not required to follow the sentencing guidelines, which are advisory rather than mandatory. In fact, federal judges deviate from the guidelines in nonproduction cases about two-thirds of the time. The 2nd Circuit concludes that Judge Suddaby had an obligation to do so in this case, since the alternative was a "shockingly high" sentence. "The cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins's conduct and [that of] other offenders whose conduct was far worse," the appeals court says. "It was substantively unreasonable for the district court to have applied the § 2G2.2 enhancements in a way that placed Jenkins at the top of the range with the very worst offenders where he did not belong." Last December the 2nd Circuit overturned a 30-year sentence for possession of child pornography on similar grounds.

The 2nd Circuit notes that Jenkins' 225-month sentence was close to the maximum for the transportation count, even though the charge was based on his decision to take child pornography with him on a trip, as opposed to actual distribution of the images. "Bringing a personal collection of child pornography across state or national borders is the most narrow and technical way to trigger the transportation provision," the court says. "Whereas Jenkins's transportation offense carried a statutory maximum of 20 years, the statutory maximum for his possession offense was 'only' 10 years. Jenkins was eligible for an additional 10 years' imprisonment because he was caught with his collection at the Canadian border rather than in his home….We disagree that bringing a personal collection to the start of a vacation as opposed to leaving it at home supplies an appropriate basis for sentencing a person to an additional 10 years in prison."

The appeals court also faults Suddaby for the 25-year term of supervised release he imposed on Jenkins, which it views as excessively long and unreasonably stringent. "Jenkins will be 63 years old when he is released from prison," the court notes. "He will be under supervised release for the next 25 years until he is 88 years old." In addition to requiring Jenkins to register as a sex offender in any state where he lives, Suddaby's order forbade him to work at any location not approved by his probation officer, to use the internet except at work (in which case he would have to inform his employer about the details of his convictions), to use a credit card without prior approval from his probation officer, to have direct contact with minors without prior approval, or to have "indirect contact" with minors except when supervised by an officially approved monitor.

"It is unclear what Jenkins is expected to do for the 25 years during which he must comply with this restriction," the appeals court says regarding the last condition. "Is he required to stay away from sporting events or natural history museums or street fairs? The reasonable necessity for these restrictions which apply to Jenkins when he is in his 70s and 80s eludes us." The 2nd Circuit notes that recidivism falls sharply with age and that Jenkins' crime in any case did not involve credit cards or contact with minors. Yet "the district court offered no explanation that might justify imposing what amounts to a lifetime of the most intense post-release supervision that prevents Jenkins from ever re-engaging in any community in which he might find himself."

Jenkins, who fired a series of lawyers and ended up representing himself, clearly rubbed Suddaby the wrong way. In a hearing excerpt quoted by the appeals court, the judge complains about Jenkins' "derogatory tone" and "disrespectful comments to this Court and everybody else that you've had to deal with." Jenkins' obnoxious comments may help explain the sentence he received, but they cannot justify it. "While we appreciate the district judge's frustration," the 2nd Circuit says, "we are unwilling to sanction dramatically increasing a sentence because an angry out-of-control pro se defendant facing decades in prison fails to manifest sufficient respect for the system that is about to incarcerate him."

[Thanks to William Dobbs for the tip.]

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  1. Reason has really taken to defending those who view child pornography the last few days. A good way to win over mainstream America and keep the libertarian moment going?

    1. I’m sorry, I’d rather see them taking an actual libertarian stand for due process and against mandatory sentences than half the SJW stuff they have been doing lately regardless of how it impacts public perception of libertarianism

    2. If you push Reason back into TDS or even just polling millennials, so help me God…

      1. Can they be pushed into SDRR?

      2. Polling millennials not bad if you present new data or new analysis not obvious from the old. Combing thru the same data table repeatedly when we could easily see for ourselves…boring.

    3. When you can stand up to Nanny-Staters by defending the worse crime known to Americans (besides murder and rape), you get good experience defending constitutional rights of Due Process and Equal Protection. The police state types use any excuse to make more crimes, stiffer punishments and keep all those people locked up and/or on lifetime registries.

      Registries are unconstitutional punishments sold to the public as civil registration requirements.

    4. My main problem is their overworking a few subject matter areas such as this, w multiple reporters on the same beat. They’ve done that for yrs.; used to be food trucks & ferrets, lately stadiums, farm/food freedom, & kid porn. I can understand it when you have a specialist like Ms. Skenazy, but now you have so many plowing the same ground in such close proximity to each other, the dirt never has a chance to settle.

  2. Reason has really taken to defending those who view child pornography the last few days. Is this part of the plan to win over mainstream America and keep the libertarian moment going?

  3. Why were the Canadians searching this dude’s computer in the first place?

    1. Probably making sure he wasn’t doing any professional work that a natural born Canadian could be doing instead.

    2. My wife tuned into the show about border agents and what they do; the US side was bad enough [abandon probable cause and any semblance of due process all ye you enter the border realm] but the Canadians seem to literally have a field day with anyone they choose; computers, anything considered “military surplus,” interrogation, open ended investigations, you name it. It was so damned disgusted I insisted it be turned off or I had to leave the room.

    3. Why were the Canadians searching this dude’s computer in the first place?

      Because the driver was of Indian descent*.

      *I don’t make the rules, I just find them absurd.

    4. That’s what I wanted to know, too. Also how much they searched.

  4. “It is unclear what Jenkins is expected to do for the 25 years during which he must comply with this restriction,” the appeals court says regarding the last condition. “Is he required to stay away from sporting events or natural history museums or street fairs? The reasonable necessity for these restrictions which apply to Jenkins when he is in his 70s and 80s eludes us.”

    Ideally, he’d lay down and die, for being such a perv.

  5. “we are unwilling to sanction dramatically increasing a sentence because a… defendant facing decades in prison fails to manifest sufficient respect for the system that is about to incarcerate him.”

    That should be enshrined in the fucking constitution.

  6. Canadian border agents found Jenkins’ child pornography on a laptop and a thumb drive as he was driving from his home in Geneva, New York,

    Veracrypt brah.

  7. “we are unwilling to sanction dramatically increasing a sentence because an angry out-of-control pro se defendant facing decades in prison fails to manifest sufficient respect for the system that is about to incarcerate him.”

    Deeeeaaamn!

    1. Kind of surprising an appellate court recognizes that a pro se defendant might fight the judge tag-teaming him with the US Attorney to steamroll him.

  8. Nineteen years? That’s shocking. I thought people caught with child porn usually got the equivalent of a life sentence.

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