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:
I dare say that none of my colleagues would disagree with the proposition that our review of all sentences should be careful and objective—it is the lives and welfare of human beings with which we are dealing. But when we review a sentence in a case involving the production, distribution, or possession of child pornography, or some combination thereof—and even more so when the offense conduct includes child molestation—we are confronted with behavior that generates an especially strong, visceral revulsion in most, or perhaps all, of us. It is our certain, intense sympathy for the victims of such offenses, I think, that requires special care to guard our own objectivity and to ensure that the sentencing judge has done the same.
I do not mean to suggest that disgust is not relevant to the imposition and review of a sentence—it may well be. Its severity may, for example, reflect the depth of emotional harm, both present and future, that a defendant has inflicted upon a victim and his or her family and friends. The publicʹs natural revulsion matters too, I think, insofar as its members suffer by empathizing with the victim, and in light of their more general legitimate interest in seeing that the offender receives just punishment.
It seems to me, however, that the emotions of a judge, standing alone—his or her personal outrage—should be as far removed from sentencing decisions as can practically be achieved. Those emotions, when unconnected to those of the victim, his or her loved ones, or the public, should not influence the severity of a sentence. Sentencing judges must apply the law to the facts (including the fact of how others have emotionally responded to the crime), not vindicate their own anger and agitation or appear to be doing so. Similarly, part of our job as reviewing judges is to avoid losing our own objectivity or focus because of our own disgust. Because of the reaction such a crime evokes in us and in the trial court, we must be particularly assiduous in assuring objectivity and propriety in assessing the sentence imposed.
Sentencing inevitably involves moral judgment, and moral judgment is inevitably grounded in emotions. It strikes me as unhelpful, at best, for sentencing judges to deny or suppress their emotional responses to crime. At the same time, judges should assess their own emotional responses in a cool, deliberate fashion, doing their best to understand what drives these responses and to identify when their responses may be idiosyncratic or unfair. Judge Sack seems quite correct in reminding us that punishment is imposed in the name of the community in order to vindicate community values and interests; it is not simply a vehicle for the judge to express personal feelings of disgust or outrage.