An Ohio district court sentenced a man convicted of child pornography possession to five years in prison (the mandatory minimum), despite sua sponte arguments from the court suggesting the sentence is unconstitutional considering the defendant's background, conduct, and mental health. United States v. Marshall, 2012 U.S. Dist. LEXIS 90487 (N.D. Ohio 2012).
The court began the opinion:
Child pornography remains one of the fastest growing areas of prosecution by the Justice Department. Law enforcement teams are policing the internet and catching people who have the false impression their habit is personal, harmless, and anonymous. Without a doubt, child pornographers deserve no sympathy -- they are serious offenders who capitalize on the vulnerability of innocent children, many of whom will have permanent emotional scars. However, these crimes, now appearing regularly on federal court dockets, raise a number of alarming issues, including the severity of punishment, which is often the result of harsh sentencing guidelines and mandatory minimum sentences usually reserved for violent felons and major drug dealers. Indeed, approximately 70% of the federal bench considers the current sentencing regime for child pornography possession and receipt cases too severe, and over 70% believe the mandatory minimum in receipt cases is too high.Next, several studies concerning the psychological issues behind child pornography were discussed, as well as an in-depth look at the way sentences are mandated under the federal sentencing guidelines. Specific to the defendant in this case, the court noted:
The mandatory minimum of five years is not a proverbial "slap on the wrist," especially for someone who has never spent a day in jail and with no history of violence or assaultive conduct, who suffers from a human growth hormone deficiency and other developmental conditions, and who voluntarily provided much of the evidence used to prosecute him. Defendant will also have the life altering consequences of probation and reporting that naturally flow from a conviction for this sex offense. When this Court weighs these individual considerations, the Guidelines produce a sentence range that is not reflective of the crime.
[T]his Court is persuaded that the Section 2252 mandatory minimum is inconsistent with the Section 3553 sentencing factors, and further believes that the mandatory minimum, as applied to this Defendant, might well be unconstitutional.
However, because courts are not allowed to sentence below the mandatory minimum, the court imposed a sentence of 60 months "while at the same time emphasizing its strong disagreement."
RELATED CASE: In 2011, a New York district court held that the mandatory minimum was "cruel and unusual punishment." United States v. C.R., 792 F. Supp. 2d 343, 496 (E.D.N.Y. 2011).