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Child porn case shows judicial rift on sentencing guidelines

Chicago readers old enough to remember the 1970s television series "Baretta" will also likely remember the phrase from the theme song, "Don't do the crime if you can't do the time."

The implication of that seems to be that being convicted of a particular crime elicits a known penalty. That may be true at times, but where federal crimes are concerned, sentencing may be open to greater discretion. Judges have guidelines that they are required to consult, but a judge can depart from the recommendations based on the seriousness of the crime and the criminal record of the defendant.

As the United States Sentencing Commission states in a video on its official website, the guidelines are meant to establish ranges for a term of sentence appropriate for a given crime.

The same level of apparent flexibility granted to judges may also be leveraged by a defendant. Not only might a defendant seek to appeal a conviction. There might be cause to appeal the sentence, too, if a case can be made that the punishment meted out is unreasonable.

But where there is flexibility of interpretation, there can also be disagreement about application, even among judges. This is clearly evident in a recent case out of Ohio.

It involves a 71-year-old defendant who pleaded guilty to a single federal count of possession of child pornography. The judge in the case initially sentenced this man to a day in prison, a month of home confinement and 10 years probation.

That departed from the guidelines. The reasons the judge gave for varying was that the man had no previous record and because the crime of possession is less serious than production or distribution. He also said that current guidelines are out of date because they fail to allow for punishments that adjust to fit the crime.   

The defendant in this case has now gone through three sentencing hearings as a result of appeals. The last one was issued by a new judge and calls for a prison term of one year and a day, followed by 10 years of supervised release. The defendant must also register as a sex offender.

But the matter is still not resolved. The defendant plans to appeal the latest sentence and his attorney says he hopes the matter eventually reaches the U.S. Supreme Court.

Source: The Columbus Dispatch, "Child-porn possessor finally gets harsher sentence: 1 year in prison," Kathy Lynn Gray, Aug. 28, 2014

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