A clarification and an apology

I recently posted a very brief piece entitled Balance.   It suggested reading a newspaper article about a horrific rape of a little girl.  Buried in the article were the facts that the offender had recently been sentenced to 20 years in federal prison for child pornography and the state sentencing judge ran his sentences consecutive to the child pornography sentence.

A thoughtful commentator read my post and the article.  He then submitted the following comment:

With all due respect, this post is utter nonsense. You start by talking about sentencing in federal child pornography prosecutions, and then you link to a story about a brutal kidnapping and rape, as if the connection between the two is self-evident.

Let me give you a different hypothetical. Imagine a similar kidnapping in which the child was tortured and ultimately murdered, but not raped or otherwise sexually abused. How should thinking about this crime affect a judge who is sentencing a defendant convicted of possessing photographs of someone being (non-sexually) tortured and murdered? Oh, wait — no such prosecution would occur, because it’s not illegal to possess photos of someone being tortured or murdered — never mind.

Okay, now let’s turn it around. Imagine a parent giving a bath to a two-year-old child — a completely innocent, commonplace event characterized by smiles and laughter. Now imagine a defendant convicted of possession of numerous videos of parents bathing small children. How should your awareness of the first scenario affect your sentencing for the second?

Sometimes the possession of photos or video is perfectly legal even when the acts captured are highly criminal. Other times, possession of photos or video is criminalized even when it depicts perfectly legal acts. The point is, the two are not the same. The harms of each need to be considered and evaluated independently.

Okay, so let’s think about the specific example you linked to in this post. Clearly, Abraham Richardson is an evil and despicable person, deserving of severe criminal punishment. But how does this story relate to child pornography? One argument sometimes made for laws against possession of child pornography is that the market demand for child pornography creates an incentive for producers to create more, thus victimizing more children. But there is absolutely nothing in the linked story to suggest that anything he did was motivated by a desire to feed the market for child pornography. So what’s the relevance?

Your meaning is not entirely transparent, but you seem to be saying: Judges have to sentence defendants convicted of crime X. Horrific crime Y angers and disgusts me. Crime X and crime Y are superficially related. Therefore, judges should reject calls for leniency in sentencing for crime X. I hope I’m misinterpreting you, because, frankly, I expect better from a federal judge.

In response, I agreed with the commentator that my post was not clear.  I agreed to provide a clarification, and so here it is.

I was the sentencing judge in the child pornography case.   I imposed the maximum sentence permitted by statute (20 years plus a lifetime of supervision).  The Guidelines were far in excess of that but they were capped by the statutory maximum.

At the time of sentencing, I was aware of the rape charge, and the horrific facts associated with it.  However, since the offender had not yet been convicted, I could not properly use the facts of the alleged rape for sentencing purposes.   And, I did not.

Earlier I written a fairly long post about the need for sentencing judges to have balance.  In particular, and among other things, I wrote that without balance that judge can turn into an avenging angel, that is:

You begin to suppress the anger that naturally flows from the horrific crimes you are forced to study.  Unless you struggle mightily to resist, you will then allow that anger to boil up to the point of an inner rage.  That rage in turn fuels a righteous indignation that, metaphorically speaking, permits you to sentence Satan while thinking of yourself as the Archangel Michael.

So here’s the deal, the federal child porn prosecution that formed the basis for my brief and fairly criticized post–the horror of the images that were the basis for the prosecution to the fear that the perpetrator had the desire and willingness to harm little children–seared the soul. In truth, the case enraged me.  More importantly, it terrified me, particularly when I thought of my grand-daughter.   It is these types of cases that illustrate the need for balance that I wrote about earlier.

I am sorry that I was opaque.  I apologize.

RGK

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