Judge polls jurors and issues 5-year sentence in child porn case; 6th Circuit dissent cited

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A federal judge in Cleveland asked jurors for their opinions before he sentenced a child porn defendant to only five years in prison on Tuesday, rejecting the prosecutor’s recommendation for a 20-year sentence.

U.S. District Judge James Gwin said jurors polled after the verdict in October recommended, on average, a sentence of 14 months in prison for Ryan Collins, reports. Collins was convicted of distributing and possessing child pornography; the distribution charge stemmed from his use of file sharing programs.

Sentencing guidelines had called for a sentence of 21 to 27 years in prison, according to the U.S. Department of Probation and Pretrial Services. Assistant U.S. Attorney Michael Sullivan had asked for a 20-year sentence on the distribution charge, the story says.

Gwin said the juror poll “does reflect how off the mark the federal sentencing guidelines are.”

Sullivan claims the sentence is based on an “impermissible survey,” says.

The dispute over the sentence reflects a larger debate on sentences for child porn offenders, according to the story. Collins’ lawyer pointed to a dissent by Senior Judge Gilbert Merritt Jr. of the Cincinnati-based 6th U.S. Circuit Court of Appeals in United States v. Walters, a case decided (PDF) on Jan. 2.

“I regard the 12-plus years of incarceration the defendant Walters received as a vast over-criminalization of the wrong involved, a sentence vastly disproportionate to the crime,” Merritt wrote.

“Walters downloaded a group of photos from the large inventory of child porn photos on the Internet. He is not a pedophile. He has not physically abused anyone. He is a young man with a wife and children whom he has not abused. He did not, in fact, pass the photos on to anyone else; and he did not, in fact, have anything to do with their production. He paid nothing to download the photos. He did not enter the commercial market for child porn. What he did is to look at photos that we would find disgusting and criminally produced.”

Merritt said the appeals panel should have acted at least to reduce the sentence to the mandatory five-year minimum.

Hat tip to the Marshall Project.

Updated at 12:15 p.m. to correct typos in the name of the 6th Circuit defendant and to explain the basis of the distribution charge.

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