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Judges: Not all kiddie porn creeps should be sentenced equally

Photo Credit: Cliffview Pilot

If there’s one thing we were sure of, it was severe prison terms for anyone who trafficked in kiddie porn — until now. Not only are more and more judges rejecting the harsh prison terms, but at least two federal appeals courts — including the one that governs New Jersey — are behind them, published reports show .


The trouble in a nutshell: The sentences were directly imposed by Congress without review by the federal Commission on Sentencing. And the U.S. Judiciary is rebelling, at the local and appeals court level.

Federal prosecutors from New Jersey who are fighting the drift got a smack this week from the 3rd Circuit Court of Appeals in Philadelphia, which essentially declared that trial judges have free rein to ignore sentencing guidelines they consider too severe in certain child pornography cases.

The decision stemmed from a sentence by a federal judge in Newark long considered one of the most lenient in the district.

U.S. District Judge Katharine S. Hayden, who called a proposed term of nearly 20 years for a man convicted of dealing in kiddie porn “outrageously high,” conducted hearings exploring how the guidelines became so inflated. Then she determined they were bogus.

As originally reported in the Legal Intelligencer , an affiliate of the Daily Business Review, Hayden zeroed in on “enhancements” that she said could apply in just about every case. She also took issue with prosecutors who sought the same federal prison terms for those who downloaded images for their own private use as for those who distributed them for profit.

Hayden sentenced the defendant to five years — over prosecutors’ objections that downloading kiddie porn is a surefire gateway to pedophilia — and was backed by the 3rd Circuit on appeal.

Writing for the court, Judge Maryanne Trump Barry (yes, The Donald’s sister) said the 2-1  majority didn’t consider Hayden’s ruling an abuse of discretion.

However, dissenting Judge Thomas M. Hardiman said he believed Hayden suspected that an overzealous Congress, wanting to fight kiddie porn at any cost, created penalties “grossly disproportionate to the culpability attendant to this type of crime.”

In turn, he said, Hayden was unfairly penalizing prosecutors who secured the guilty plea by telling the defendant he’d get a harsher sentence if a jury convicted him.

The 2nd Circuit rendered a similar opinion in another case, overturning a sentence that the justices found too harsh, even though it fell within what they called “an eccentric guideline.” As part of their argument, the judges said, an actual pedophile caught in the act might end up with less time than someone who actually downloads — and even distributes — child porn.

Push will eventually come to shove on an even more significant scale — as in: the U.S. Supreme Court. If that time comes, we may eventually see guidelines that differentiate between the twisted creep who never leaves his room and the big-time trafficker moving millions of images a day.

Meantime, judges are likely going to start — figuratively — taking matters into their own hands.

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