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Sixth Circuit: Okay to Consider Jury’s Belief that Child Pornography Sentence Too Harsh

Does the jury’s opinion matter at sentencing? Almost never. But last week, a Sixth Circuit panel said that a trial judge did not go too far by polling the jury about their opinion on sentencing in a child pornography case and considering their answer under 18 USC 3553(a). The below-Guidelines sentence was affirmed in U.S. v. Collins.

After an Ohio jury found defendant Ryan Collins guilty of receiving and distributing child pornography, Judge James S. Gwin asked the jurors what the defendant’s sentence should be. The average recommended sentence among jurors was 14.5 months, with individual responses ranging from 0-60 months.

Under the federal sentencing guidelines, the defendant’s recommended sentence was 262-327 months, more than eighteen times the average sentence recommended by the jurors.

Judge Gwin departed from the range recommended by the Guidelines and issued the mandatory minimum sentence of 60 months, citing the jury poll as one factor in his decision. The jury poll, he explained, conveys the public view of the gravity of the offense, something the Guidelines are supposed to take into account but clearly failed to do here.

The Sixth Circuit affirmed the sentence, finding that Judge Gwin did not abuse his discretion. The jury’s essential role is a fact-finding one, but since they were not polled until after they had reached a verdict, there was no interference with that primary function. And while the jury is not the proper body to make a sentencing determination, the judge did not defer to their recommendation completely but rather referenced it among other factors. It is perfectly acceptable, the Sixth Circuit found, to take account of a jury poll as one input in the sentencing decision.

The jurors’ sentiment in this case reflects that the “eccentric” child pornography sentencing guidelines are out of touch with community opinion. By allowing judges to take jury polls about sentencing into consideration, the Sixth Circuit has approved a potential attack on the outlandishly high results yielded by mechanical imposition of the child porn Guidelines.

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