District court lowers sentence from 225 to 200 months after appeal. Still too long, appeals court says.
By Zachary Margulis-Ohnuma
A 200-month sentence imposed on a first-time child pornography offender was thrown out by the Second Circuit Court of Appeals on Friday because the judge erroneously assumed that the defendant must have committed a prior sex offense.
The reversal was the second time that the circuit court vacated the sentence imposed on Joseph Vincent Jenkins, who was convicted after trial of transporting child porn on thumb drives and laptops as he traveled to his parents’ vacation home in Canada. The first sentence, 225 months, was too long because there was no basis for Chief Judge Glenn T. Suddaby’s conclusion that Jenkins was at a high risk to re-offend. Jenkins had never been convicted before, was not accused of attempting to harm a child, and “never spoke to, much less approached or touched, a child.”
This time, Judge Suddaby erroneously imposed nearly seventeen years on a first-time, non-violent, child pornography offender by cherry-picking studies that, he said, showed that sex crimes against children are much more common than what is reported. He found that studies show “inconsistent findings concerning the prevalence rate of sex offending by non-production offenders.” Judge Suddaby went on to note features of Jenkins’s personality identified in a competency report, which, he said were correlated with sexually dangerous behavior. Based on this analysis, Judge Suddaby concluded that “it was likely that Jenkins had committed a prior–undetected–sex offense, that he therefore had a high risk of recidivism, that a lengthy sentence was justified.”
The Circuit Court had little patience for such nonsense: “the district judge used statistics and studies to presume that Jenkins had actually committed prior sexual offenses, and relied on that assumption to lengthen Jenkins’s sentence. If this were right, there would be no first-time offenders.”
In fact, as we contend on behalf of our clients regularly, social science research over the last decade or so has consistently shown that child pornography possessors are among the least likely offenders to recidivate. The Supreme Court’s dicta indicating the rate of recidivism of sex offenders is “frightening and high” and suggesting a correlation between child pornography offenders and hands-on offenders has been proven wrong time and time again.
In light of Judge Suddaby’s apparent inability to follow the circuit’s direction the first time round, the circuit court directed the Northern District of New York to find another judge to sentence the defendant.
If you face sentencing on child pornography charges in federal court, you need a defense attorney with experience debunking pseudo-scientific claims about child pornography recidivism rates. Overcoming misinformation among judges is difficult, but the Second Circuit Court of Appeals’s decisions in Jenkins show that it can be done. Call our office for more information.