In what appears to be an agonizing decision for a federal judge, a defendant convicted of attempting to possess child pornography was sentenced to 18 months incarceration, ten years of supervised release, and a $100 special assessment. United States v. Rothwell, 2012 U.S. Dist. LEXIS 38379 (E.D. Tenn. 2012).
The defendant has an IQ of 77, and he spells and does math at elementary school levels. Additionally, he is a diabetic and has recently had a variety of other health problems including an enlarged liver, pancreatitis, thrombosis, and asthma. He has lived with his parents his entire life, takes care of them, and does the majority of the work on the family farm. His father, who recently had open-heart surgery, testified that the farm would have to be closed without the help from his son.
After federal agents took down a child pornography distribution company, the government continued to solicit customers in a sting operation. The defendant had ordered several DVDs from the company and was arrested after delivery (not of actual pornographic DVDs) where he gave a written statement, including:
I think child porn any one under 18 years old that doing sexual acts. The video that I ordered I believe that was possible child porn, I ordere them because I was just courious, I figered that they was not possible elagle bacause they was threw the mail. I have never had any sexual contact with children what so ever.The offense level (minus reductions) was 22, and his criminal history category was I, giving a range of 41-51 months. His mental capacity allowed a downward departure of four levels.
In reaching the sentence, the court found the following factors persuasive:
- Because no child pornography was viewed by the defendant, there were no victims. Also, no child pornography was found in the defendant's possession.
- The defendant was going to pay for the child pornography whereas most possessors do not do so, making it more troubling.
- The fact that it did not involve a computer made it less troubling than cases that do.
However, these factors were not used:
- Though the court sympathized with the defendant's "unfortunate family circumstances," it followed Sixth Circuit precedent by not relying on it.
- Vulnerability in prison could not be considered because there was no evidence that the prison would not be able to "protect and provide" for him.
- Limited social awareness
Considering all of those factors, the court found that 18 months incarceration and 10 years supervised release was sufficient to protect the public from the defendant reoffending. The judge does not seem to have come to this decision lightly, beginning the 51-page opinion by noting that this case:
illustrates the difficulty a federal judge faces in arriving at an appropriate sentence and the struggle in which the sentencing judge must engage over often compelling conflicting considerations that come into play in child pornography cases.