PORN CASES DECIDED DIFFERENTLY
No One-Size-Fits-All Approach to Sentencing Guidelines
BY STEPHANIE FRANCIS CAHILL

Two federal appeals courts reacted differently to arguments by defendants who sought lesser sentences for possessing child pornography.

In one case, the court upheld a lower sentence for a man whose demeanor made him susceptible to abuse in prison. In the other, a court refused to buy an argument that a man deserved a lower sentence because his crime was a result of his addiction to child pornography.

Robert Parish, a Montana man who stands 5’11", received a departure of eight points–had two years shaved off his sentence–in part because of his demeanor and stature. That, coupled with his crime, made him susceptible to abuse in prison, a district judge reasoned.

In a 2-1 opinion, the 9th U.S. Circuit Court of Appeals in San Francisco on Oct. 18 upheld the sentence of eight months in prison and eight months of home confinement with a monitoring device. The prosecutor had argued that the U.S. Sentencing Guidelines warranted a 33- to 41-month sentence.

"To the extent that stature can be considered something more than merely physical height and weight, it is something better evaluated by a district judge than by an appellate panel who has never seen the defendant," Judge William C. Canby Jr. wrote for the court. U.S. v. Parish, No. 01-30017.

Assistant U.S. attorney Marsha Good Sept did not return phone calls seeking comment. John P. Rhodes, a Montana assistant federal defender representing Parish, calls him "a wimp."

"I describe him as a wimp because he’s a very caring, compassionate person, even though he’s not unusually small in physical stature," Rhodes says. "He presents himself in a meek, mild way. He’s the exact opposite of physically imposing."

Judge Susan P. Graber dissented from the opinion, writing that the nature of the crime did not merit a lesser sentence.

"The majority’s message is that if society so roundly condemns a particular crime that even other criminals are especially appalled by it, the ‘average Joe’ who perpetrates the crime should spend less than the average time in prison for that crime," she wrote.

In 1999, Parish’s former employer discovered child pornography on his laptop computer. According to the Oct. 18 opinion, he was terminated for spending too much time on the Internet. Parish did not save images to the computer, but they were automatically downloaded to the hard drive.

Of the 9,000 images in the folder, 1,300 appeared to be child pornography.

After Parish’s arrest, the FBI seized a laptop computer from his new employer and found that he had visited Internet sites featuring child pornography. The agency also discovered that Parish exchanged e-mails with a 15-year-old girl.

The trial court also found Parish eligible for a downward departure because his conduct was outside the "heartland" of the offense, as described by the guidelines. Michael Joseph Scolatti, the co-director of Missoula Regional Prison’s sex-offender treatment unit, was a defense expert witness. Parish’s conduct, Scolatti told the court, was less serious than that of other people sentenced for child-pornography possession. The opinion notes that the defendant did not purposely download images, or arrange them in a filing system. He also did not bookmark any pages with child pornography.

Stephen R. Glassroth, a defense attorney in Alabama, says that Parish’s case is unusual.

"You see far more instances of intentional trading, cataloging and indexing," Glassroth says. "These kinds of cases are generally more severe."

Donald R. Havis, treasurer of the National Black Prosecutors Association, says that it appears to him that the U.S. Attorney’s Office followed the guidelines for sentencing Parish. However, Havis notes that sentencing depends on case specifics.

"In this case, the court looked at how the files were acquired and kept," Havis says. "He didn’t have the state of mind to organize it and put it in a certain system."

An Alabama man also convicted of possessing child pornography did not have Parish’s luck. Attorneys for Jose David Caro argued that his sex addiction led to diminished mental capacity and was responsible for his crime.

The government argued that Caro should have an enhanced sentence of 40 to 57 months because some of the images were sadistic and masochistic. Prosecutors claimed that sex addiction is no different from an impulse control disorder, which does not merit a reduced sentence in the jurisdiction.

Caro pleaded guilty to one count of possession, one count of receipt of child pornography, and one count of transporting and shipping child pornography.

U.S. District Judge U.W. Clemon sided with the defense and granted an 11-level downward departure–he allowed 10 months of each of the three sentences to be served concurrently. On Oct. 21, the 11th U.S. Circuit Court of Appeals in Atlanta reversed and remanded the case for resentencing. U.S. v. Caro, No. 01-16311.

The court said there was no merit to Caro’s arguments and found that the sentence should be enhanced, making the total 70 to 87 months in prison.

U.S. Customs agents discovered the pornography while investigating someone else who was exchanging pornographic images with Caro. Police discovered sexually explicit stories describing child sexual abuse on Caro’s home computer. Police also found a notebook with newspaper clippings about young girls. Caro wrote captions describing sex acts he wanted to perform on the subjects. In addition, police found a pair of young girls’ underwear, belonging to a neighbor, in Caro’s home. Caro maintains that he did not have any sexual contact with the girl, and he stole the underwear when his parents were house-sitting at the child’s residence.

Both cases, says Washington, D.C., lawyer Ronald H. Weich, demonstrate how the U.S. Sentencing Commission Guidelines should work. Weich served as special counsel to the commission, which developed the guidelines.

"These cases show that no two defendants are alike, and a one-size-fits-all approach to sentencing is misguided," he says.

----ABA Journal