| Read Time: 2 minutes | Federal Crimes

The Second Circuit Court of Appeals overturned Judge Weinstein’s sentence of a 19 year old for distribution of child pornography.  The Circuit Court’sdecision found that the mandatory minimum five year sentence did not violate the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment and required Judge Weinstein to, at a minimum, sentence the defendant to the required five years in prison.

The facts and circumstances of the case are not important for my discussion.  All that really needs to be understood is that there was child pornography (lots of it) and it was shared over the internet.  Nobody, not me, nor Judge Weinstein, is justifying his possession or believing that punishment was inappropriate.  However the case does touch on a number of hot topics.  The draconian sentencing guidelines associated with federal possession and distribution of child pornography, mandatory minimum sentences without a safety valve for judicial discretion, and how do we treat young adults sentenced for certain crimes.

The idea that the federal sentencing guidelines as applied to child pornography cases are too extreme has been gaining steam for years.  In fact on March 5, 2013 the Department of Justice recommended a revision to the sentencing guidelines.  The Justice Department’s recommendation accounted for new technology and how offenders obtain child pornography collections.  Additionally a 2010 survey of federal judges conducted by the United States Sentencing Commission found that 70 percent of the respondents believed the guidelines were too high for possession and found that trial judges were using their discretion to go below the guidelines.

However, the “C.R.” case was different.  Judge Weinstein, after hearing extensive testimony, attempted to go below the mandatory minimum for distribution of child pornography.  He attempted to argue that the mandatory minimum statute was cruel and unusual.  It was Judge Weinstein’s only way of trying to craft a sentence that was “sufficient, but not greater than necessary.”  Unfortunately the Second Circuit did not agree and found that a minimum five year sentence for distribution of child pornography was not “inherently barbaric” and “disproportionate to the crime”.

I believe that Judge Weinstein was trying to push the envelope, and rightly so, on the law that prohibits capital punishment for juvenile offenders and life without parole for juvenile’s convicted of non-homicide cases.  By requiring a judge to impose a mandatory minimum sentence on a teenager and not allowing for any discretion on that sentence is extremely harsh.  Even Florida, not exactly known for going easy on crime, allows for a Judge to waive a mandatory minimum sentence under the Youthful Offender statute.

I think the only way a Judge is going to regain their discretion is for Congress to give them the sentencing power that Judges were empowered with for centuries.  Until then, mandatory minimum will continue to be the norm and young adult offenders will continue to waste away in our prisons.

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Andrew Moses

Andrew has been practicing criminal law his entire career. After graduating from law school he began working as an Assistant State Attorney prosecuting cases in Orange and Osceola Counties. During his time as an Assistant State Attorney, Andrew handled all types of cases ranging from misdemeanors to such serious felonies as drug trafficking and armed robbery. His experience as a prosecutor helped him gain perspective of the criminal justice system and how the government established its cases.

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