Appeals Court Rejects 'Shockingly High' 19-Year Sentence for Child Porn Collection
The 2nd Circuit says the recommended prison term was "substantively unreasonable."
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 offenses 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.]
