Brooklyn Judge Defies Mandatory Minimum Sentencing for Child Pornography

May 24, 2010 by David S. Seltzer

As a West Palm Beach cyber crime criminal defense lawyer, I work frequently with people who are charged with possession of child pornography. That means I keep an eye on the ongoing debate about the high sentencing requirements for federal child pornography crimes. And, as I have written here before, I agree with critics of the system that the mandatory minimums are too high. That’s why I was pleasantly surprised by a May 21 article in the New York Times, about a Brooklyn U.S. district court judge who is fighting the sentencing requirements out of his belief that they are too high to fit the crime of downloading child pornography. Judge Jack Weinstein is also advocating for defendant Pietro Polizzi, whose convictions he has thrown out twice.

Weinstein stressed that he does not approve of child pornography, but said he doesn’t believe the five-year mandatory minimum for possession is appropriate for the crime. In fact, he said, the sentencing guidelines for child pornography defendants “destroy lives unnecessarily.” This belief is echoed by some other federal courts, including the Second U.S. Circuit Court of Appeals. That court recently threw out a 20-year sentence in a child pornography case, saying the guidelines can lead to unreasonable sentences “unless applied with great care.” In fact, the Second said, child pornography possession sentences can be longer than some sentences for actual sexual abuse of a child.

Weinstein has taken some risks to apply his beliefs to the case of Polizzi, who is accused of possessing more than 5,000 images. His recommended sentence in federal court was 11 to 14 years in prison, with a minimum of five; it would have been four years in New York state court. As is usual, the jury that convicted Polizzi was not told what a high sentence he faced. After they came back with the guilty verdict, Weinstein explained the sentencing and asked if the jurors would have changed their votes if they’d known. Two said they would and five criticized the sentence, so Weinstein threw out the conviction. The Second Circuit overturned that decision, but Weinstein threw it out again on different grounds. He also refused to order electronic monitoring for Polizzi while he awaits another trial, and said he would inform the jury about the sentencing guidelines in any future case.

As a Fort Lauderdale cyber crime criminal defense attorney, I’m delighted to read about judges like Weinstein, who are willing to arouse public anger in order to do what they see as the right thing. The public is against child pornography, of course, and advocating for the rights of child pornography defendants does not make a judge popular. However, high sentencing guidelines and high mandatory minimum sentences have serious problems. As the judge (and the Second Circuit) said, high sentencing guidelines can create unjust sentences. The mandatory aspect means judges can’t deviate from the guidelines, even if they feel justice requires it. And by doing this, high mandatory minimums essentially substitute the judgment of Congressmembers who don’t attend the trials (but do want to get re-elected) for the judgment of the judges who do.

Like Weinstein and our society as a whole, I don’t approve of child pornography. But there’s a big difference between approving of something and understanding that penalties can go too far. Defendants like Polizzi create a demand for child pornography, which in turn is always created by the exploitation of children (if it’s not computer-generated or animated). But they don’t directly exploit children, and that distinction has been obliterated by high mandatory minimums and the hysteria that created them. It’s a distinction that matters a lot to defendants like Polizzi, and like my own clients as a Miami cyber crime criminal defense lawyer. Sentences for these defendants should allow judges to use their own good judgment in cases where a high sentence could destroy a life.