Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More

Yesterday, in United States v. Garthus (No. 10-3097), the Seventh Circuit affirmed a thirty-year sentence for a defendant who pled guilty to transporting, receiving, and possessing child pornography.  Given the defendant’s age, 44, this is close to a de facto life sentence, which is remarkable — or should be remarkable, but perhaps really isn’t any more — for a mere consumer, not a producer, of kiddie porn.

In any event, Judge Posner’s wide-ranging opinion for the panel includes much food for thought.  Here are some of the more noteworthy aspects of his analysis, some of which have broad relevance to sentencing outside the pornography context.

The defendant’s main argument on appeal was that the district judge had not addressed his diminished-capacity issues.  It seems that Posner does not think much of diminished capacity as a basis for sentence reduction:

Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure. The diminution makes a defendant more likely to repeat his crime when he is released from prison. That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire.  Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist.  (3)

Although recognizing a desert-based rationale for treating diminished capacity as mitigating, Posner indicated that district judges may freely disregard desert considerations in this context:

In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so—why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism—is not explained. In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy.  And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.  (4)

. . .

The judge’s sentencing remarks were cryptic. But the tension we noted earlier between diminished capacity as a mitigating and as an aggravating factor in sentencing makes it difficult for a judge to do more than this judge did, which is to choose. It was an unavoidable choice between incommensurables.  (10)

By my lights, this line of thinking gives unduly short shrift to desert.  The suggestion is that there is an essentially arbitrary choice to be made between incapacitation or desert (or perhaps some mixture of the two as a third option), and the district judge need provide no real explanation for selecting one purpose over another.  But district judges are required to consider desert under § 3553(a)(2)(A), and must impose a sentence sufficient, but not greater than necessary, to comply with the requirements of desert and the other listed purposes of sentencing.  This requires, not an arbitrary selection of a purpose, but an effort to strike a principled balance among the purposes.

Posner seemed to distinguish earlier failure-to-explain cases on the ground that defense counsel did not use the phrase “diminished capacity” or (apparently) anything like it at sentencing (5, 6), but counsel did present considerable evidence of the defendant’s cognitive and psychiatric deficiencies.  To me, that sort of evidence screams out “diminished capacity.”  From the Posner opinion, it’s hard to tell exactly what defense counsel did say — Posner dismissed the defense case at sentencing as an incoherent mess, which it might very well have  been — but I hope Garthus will not be read later so as to demand certain magic words or a high level of analytical rigor by defense counsel in invoking a well-recognized ground for mitigation before the sentencing judge’s duty to address that ground is triggered.

In addition to rejecting the argument that the sentencing judge should have addressed diminished capacity, Posner also spent a good deal of time criticizing the argument made in the district court that the defendant would be harmless upon his release after 180 months (the statutory minimum).  He asserted, “We need evidence-driven law just as we need evidence-driven medicine.”  (8)  Defense counsel did use expert testimony from a psychiatrist, but Posner seems to have done his own research on the scientific literature, citing and discussing six different studies on risk and sex offenders.  He observed,

The psychiatrist mentioned none of the relevant scientific literature in assessing the risk of recidivism, see United States v. McIlrath, 512 F.3d 421, 424 (7th Cir. 2008), and defense counsel did not suggest that the defendant might be civilly committed, as a continuing menace to society, after completion of his prison term.  (10)

For defense counsel, the suggestions here seem to be (a) make sure your expert’s opinion is grounded in the published scientific research, and (b) think about civil commitment of your client as a way to alleviate recidivism concerns.

Finally, Posner rejected the defendant’s attack on the child pornography guidelines as “empirically unsupported, vindictive, and excessively harsh.”  Although the issues raised by Garthus may be considered by a sentencing judge, the judge is not required to consider them.  Posner could have ended the analysis there, but went out of his way to observe,

The gravity of the defendant’s offense should not be denigrated. . . . “The greater the customer demand for child pornography, the more that will be produced . . . . The logic of deterrence suggests that the lighter the punishment for downloading and uploading child pornography, the greater the customer demand for it and so the more will be produced.”  (12-13)

This is an ironic appendage to an opinion that calls for “evidence-driven law,” for we have no more than Posner’s word for it that lighter punishments for downloading and uploading lead inexorably to more production.  Is it really so obvious that giving Garthus and others like him 30 years instead of, say, 20 years will make a difference in how much child pornography is produced?  The likelihood of being caught and prosecuted is likely a far more important factor for deterrence than the difference between imposing very long and extremely long sentences.  Moreover, Posner’s own observations about the compulsiveness of sex offenses should raise questions about the viability of rational deterrence models in this setting.