Sixty years in prison may seem like a long time for a crime not involving homicide, but such was the term Nathan Brown received in the Northern District of New York for producing and possessing child pornography. Brown’s sentence was premised, in part, on the psychological harm done to three children whom Brown photographed in sexually graphic ways. However, the record only provided clear support for harm to two of the children; the third was apparently photographed while sleeping and had no recollection of the incident afterwards. Last June, a panel of the Second Circuit initially ruled (2-1) that Brown should be resentenced so as to ensure that his punishment did not result from an erroneous understanding of the facts. However, the same panel of the Second Circuit reversed itself earlier this month, affirming Brown’s sentence as originally imposed.
The panel’s switch resulted from a change of heart by Judge Robert Sack, who ultimately concluded that the long sentence was reasonable and a resentencing not likely to lead to a different outcome. Although backing away from the panel’s initial holding, Sack apparently remained troubled by aspects of the district judge’s “rhetorical overkill” at Brown’s sentencing. Sack elaborated on his concerns in a thoughtful concurring opinion. Highlighting what seems an important challenge in the sentencing of certain types of cases involving highly disturbing offenses, Sack’s opinion merits quoting at length: (more…)