How Severe is Too Severe (for Production of Child Porn)?

“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.”  So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016)  (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive.  The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.

The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of child pornography.  The potential factual misunderstanding related to comments by the judge that the photographs had traumatized all three girls, destroyed their lives, and that they would have to “worry [about them] for the rest of their lives,” when in fact, one of the girls was entirely unaware of the photographs because she was asleep at the time the photos were taken and has never been told that they exist.  The significance of the opinion, however, is surely the commentary about the substantive reasonableness of the sentence in which the Court stated, “Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior.”  The Court went on to say that it was not addressing the substance of the sentence, but that “we will revisit that issue should the district court decide to reimpose the same 60-year sentence on remand.”

Judge Droney dissented saying “the majority simply disagrees with the length of imprisonment.”  J. Droney would find that the District Court acted within its discretion in imposing what he, J. Droney, found to be an appropriate and warranted sentence.