549 F. Supp. 2d 308 (E.D.N.Y. 2008)
difference under the statute whether the defendant was or was not surprised.
Neither is the intentional or unintentional storage of images an element of section 2252(a)(2) prohibiting receipt. In Irving, the Second Circuit Court of Appeals rejected an insufficiency of evidence claim on the ground that the government had proved knowing possession and receipt, despite defendant’s contention that someone else could have saved the illicit images and placed them onto his hard drive. 452 F.3d 110. The court relied on the fact that seventy-five files found were stored in a “My Documents” folder. Id. at 122. Storing images is not an element of the crime of receiving charged, so whether the elements were stored deliberately or not should make no difference on a receiving charge, though it may have been relevant to the credibility of his claim of lack of knowledge.
Although a court may impose a “limiting construction” on a statute “in considering a facial challenge,” it may do so “only if the statute is readily susceptible to such a construction.” Reno v. American Civil Liberties Union, 521 U.S. 844, 884, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). If the statute is not readily susceptible of such an interpretation, then the Court will “not rewrite a law to conform it to constitutional requirements.” Id. at 884-85, 117 S. Ct. 2329.
Interpretation of the statute to meet constitutional requirements in a case such as the present one is dubious. Cf. Reno, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (constitutionality of provision prohibiting transmission of obscene or indecent communications by means of telecommunications device to persons under age eighteen saved from facial overbreadth challenge by severing term “or indecent” from statute pursuant to its severability clause); Jacobson v. United States, 503 U.S. 540, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992) (in receiving child pornography prosecution, government did not establish that defendant, who had received mailings from the government purporting to be from organizations asserting individual rights, was predisposed to commit the offense). Interpretations of X-Citement Video have twisted the statute’s grammar by reading “knowingly” to apply to all elements of the crime. Since knowingly has now been shown to be insufficient, a court would have to replace knowingly with intentionally or insert a more specific definition of computer-based receipt and possession, such as receipt after ordering, after exchanging, after payment, etc., to comply with due process requirements. Such a rewriting of the statute would exceed any court’s authority.
The statute charged contains no definition of “receipt” or “possession,” and no other mens rea element beyond “knowingly.” The case is unlike others in which courts “have construed a statute narrowly because the text or other source of congressional intent identified a clear line that [a court] could draw.” Reno, 521 U.S. at 884, 117 S. Ct. 2329. Were the court writing on a clean slate it would declare the statute unconstitutional and dismiss the indictment.
Because the Eighth Amendment requires a punishment to be both “Cruel and Unusual” to be unconstitutional, U.S. Const. amend. VIII (emphasis added), cruelty and unusualness must be separately considered.
Imprisonment of at least five years for this defendant is cruel. Few jurors or others would send a psychologically stunted man who: had suffered vicious sexual abuse as a child; without much of a formal education, had taught himself to play and collect music; had owned and operated a popular Italian restaurant; had established a home and family with a loving wife and children; and had earned the trust of his neighbors, to prison for five years because he repaired to a locked room in his garage to watch child pornography received on his computer. As one juror explained, Polizzi needed treatment, not a destructive long prison sentence. See Part II.B.8, supra; cf. Hudson v. McMillian, 508 U.S. 1, 16, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) (Blackmun, J., concurring) (“I do not read anything in the Court’s opinion to limit injury cognizable under the Eighth Amendment to physical injury. It is not hard to imagine inflictions of psychological harm — without corresponding physical harm — that might prove to be cruel and unusual punishment.”).
The cruelty we accept towards those different from ourselves, such as prisoners and criminal defendants, has been traced by some scholars back to American slavery, where the utmost cruelty was tolerated legally and socially. Jeremy Waldron, Foreword to Colin Dayan, The Story of Cruel & Unusual, at xv-xviii (2007). Slaves being thought of as non-human, there were few inhibitions against mistreating them as fellow persons. Cf. The Golden Rule, “Do onto others as you would have them do onto you,” as quoted in Johnson v. Celotex Corp., 899 F.2d 1281, 1289 (2d Cir. 1990). Despite the Civil War and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments making former slaves legally equal with free people, our ingrained attitude towards freedom to abuse “others” endures. Cf. U.S. Const. amend. XIII, § 1 (“Neither slavery nor involuntary servitude, except as a punishment for crime ... shall exist within the United States _”) (emphasis added). Minimum sentences are exemplars, however removed in time and place from that attitude towards slaves. See generally Dayan, supra.
In its earlier cases, the Supreme Court defined “cruelty” of punishment in terms of barbaric or tortuous treatment. See Gregg v. Georgia, 428 U.S. 158, 170, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); see, e.g., Wilkerson v. Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1878) (“[I]t is safe to affirm that punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden by that amendment”). Gregg’s “unnecessary and wanton infliction of pain” standard has been the “settled rule” in modern times. Hudson, 503 U.S. at 5, 112 S. Ct. 995. Capital punishment, for example, is not “cruel and unusual” unless it results in the unnecessary and wanton infliction of pain (or is grossly disproportionate to the crime, see Part III.C, infra). Gregg, 428 U.S. at 170, 177-78, 96 S. Ct. 2909. Without delving into Eighth Amendment doctrine, suffice it to say that in terms of imposing punishment, a sentence of imprisonment for five years is not necessarily constitutionally “cruel,” however excessive it might seem to the laity in the context of a particular case. It does not approach, for example, the eighteenth-century British practice of “anatomization,” permitting the defendant’s body to be cut up after hanging to create added problems in the culprit’s afterlife. See Bruce P. Smith, English Criminal Justice Administration, 1650-1850: A Historiographic Essay, 25 Law & Hist. Rev. 593, 609 (2007). Nonetheless, for the sake of discussion, in the context of the present case and defendant, a five-year prison term, it is assumed, would be considered by most people to be cruel.
A five-year mandatory minimum is not unusual. There are many instances in this country where cruelty in punishment is adopted by Congress as a policy: the 100-to-1 sentencing weight ratio for cocaine base (crack) versus powder cocaine, which has punished the Black more than the White community; capital punishment, unique in the western world, which has been abandoned even in large parts of this country; and excessively rigid guideline sentences that have overfilled our prisons and denuded minority communities of males in their prime years, contributing to a destructive culture sending young men down the pipeline of crime and early death. See, e.g., Adam Liptak, More than 1 in 100 Adults Are Now in Prison in U.S.: Inmate Population is Highest in the World, N.Y. Times, Feb. 29, 2008, at A14 (since 1987 the national prison population has nearly tripled, with great taxpayer burden); cf. Dayan, supra, at 15 (quoting an American abolitionist in reference to an 1822 Mississippi “slave law”: “And it is only an unusual punishment which is forbidden! The masters and overseers have only to repeat their excessive punishments so frequently that they become ‘usual’, and the statute does not apply to them!”).
The cruelty and injustice of mandatory minimums are widely recognized. In a speech to the American Bar Association, Justice Kennedy noted that he could “accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.” Anthony M. Kennedy, Assoc. Justice, Supreme Court of the United States, Address at A.B.A. Annual Meeting (Aug. 9, 2003) (requesting the Association urge Congress to repeal mandatory minimums). Because of their very commonality “in a world of statutorily fixed mandatory sentences for many crimes,” Blakely v. Washington, 542 U.S. 296, 331, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (Breyer, J., dissenting), “[s]evere, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.” Harmelin v. Michigan, 501 U.S. 957, 995, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991).
In the federal system, many drug crimes, firearms offenses, and child sex crimes entail mandatory minimums and many offenders are sentenced under them every year. See Appendix B, infra (state mandatory minimum sentences for child sex offenses); Appendix C, infra (mandatory minimums in federal statutes). There are “at least 171 individual mandatory minimum provisions currently in the federal criminal statutes.” Ricardo H. Hinojosa, Chair, United States Sentencing Commission, Statement Before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security 2 (June 26, 2007), available at http://www.ussc.gov/testimony/6_26_07.pdf (hereinafter Hinojosa). For fiscal year 2006, 20,737 federal offenders were convicted on 33,636 counts of violating statutes carrying minimum penalties:
Of these 33,636 counts of conviction, the overwhelming majority (94.4%) were for drug offenses (27,898 counts of conviction, or 82.9%) and firearms offenses (3,864 counts of conviction, or 11.4%). Most of the 171 mandatory minimum provisions rarely if ever were used in fiscal year 2006, with 68 such provisions not used at all.
Id. at 2.
Faced with a mandatory minimum, some defendants are more willing to test their case in open court because they run little risk of a higher sentence. Ninety-five percent (95.7%) of all federal offenders in fiscal year 2006 pled guilty; four percent (4.3%) of all offenders were convicted after trial. Id. at 5. Those offenders convicted under a statute carrying a mandatory minimum penalty went to trial slightly more often than general offenders: ninety-three percent (93.2%) pled guilty, and 6.8% were convicted after trial. Id. Over six hundred people were convicted of sex crimes carrying a mandatory minimum sentence in 2006. Id. at 8 tbl.3. Violations of 18 U.S.C. § 2252, containing the two subsections under which Polizzi was convicted, totaled 949 counts. Id. at app. B.
Criminal sexual abuse, pornography, and prostitution offenses represent a small percentage of the overall federal caseload. In fiscal year 2006, 605 criminal sexual abuse, pornography, and prostitution offenders were convicted of statutes carrying a mandatory minimum penalty, which represents 2.9 percent of all offenders convicted of such statutes and 38.6 percent of the 1,569 criminal sexual abuse, pornography, and prostitution offenders in fiscal year 2006. Of these 605 offenders, 13 offenders (2.1%) were sentenced without regard to and below the statutory mandatory minimum penalty because of a substantial assistance motion by the government under 18 U.S.C. § 3553(e). Id. at 14.
Defendants facing possible mandatory minimum sentences have few options to negotiate a lower sentence. Because of the substantial assistance and safety valve provisions, either alone or in combination with one another, “7,812 drug offenders altogether (or 47.8% of the 16,334 drug offenders) were sentenced without regard to and below the mandatory minimum.” Id. at 9. In contrast, only 2.1% of sex offenders were able to obtain a non-mandatory minimum sentence. Id. This discrepancy may arise in part because of sex offenders’ ineligibility for 18 U.S.C. § 3553(f)’s safety valve provision as well as their inability to provide “substantial assistance” towards prosecutions of other crimes; receivers and possessors like Polizzi have no valuable information to give law enforcement since their transactions take place anonymously over the Internet. See 18 U.S.C. § 3553(e) (sentence below statutory minimum permitted “to reflect a defendant’s substantial assistance,” upon motion by the government). Even where defendants may be sentenced without regard to a statutory minimum, courts seem loath to reduce sentences in the area of sexual abuse prosecutions. Id. at 14-15 (noting that 31 offenders in this category were eligible for a sentence below the statutory minimum in 2006, but 18 (58.1%) received a sentence at or above the statutory minimum).
Even though many would characterize some mandatory minimum sentences as “draconian,” the Supreme Court has repeatedly upheld their constitutionality, including: 1) a sentence of 25 years to life, under the California “Three Strikes Law,” for shoplifting three golf clubs, imposed on a defendant with a long minor criminal history and four previous burglary/robbery felony convictions, Ewing v. California, 538 U.S. 11, 17-20, 30-31, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003); 2) two consecutive 25-year-to-life sentences for two counts of petty theft under the same California statute, Lockyer v. Andrade, 538 U.S. 63, 77, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); 3) life imprisonment without possibility of parole for possessing more than 650 grams of cocaine, Harmelin, 501 U.S. 957, 961, 996, 111 S. Ct. 2680, 115 L. Ed. 2d 836; and 4) a life sentence, for a defendant convicted under a recidivist statute of fraudulent use of a credit card in the amount of $80, passing a forged check for $28.36, and obtaining $120.75 by false pretenses, Rummel v. Estelle, 445 U.S. 263, 264-66, 283, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). The Court also recently denied certiorari where a defendant with no adult criminal history received 55 years for three counts of possessing (but not using or displaying) a handgun in connection with distribution of a relatively small amount of marijuana, United States v. Angelos, 433 F.3d 738 (10th Cir. 2006), cert. denied, — U.S. —, 127 S. Ct. 723, 166 L. Ed. 2d 561 (2006), despite an amicus brief signed by over a hundred former U.S. Attorneys General, retired federal judges, and high ranking Department of Justice officials. Brief for 163 Individuals as Amici Curiae Supporting Appellant, United States v. Angelos, No. 04-4282, 2005 WL 2347343 (10th Cir. June 22, 2005). A petition for certiorari is now pending in the case of an errant soldier who wants to return to fight for the United States in Iraq, and who all (except his own lawyer) agree should not be sentenced to prison, but who received a mandatory five-year sentence. United States v. Lett, 483 F.3d 782 (11th Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3444 (U.S. Feb. 12, 2008) (No. 07-1042); see Adam Liptak, Finding 11-Day Sentence Not Too Little, But Too Late, N.Y. Times, Feb. 12, 2008.
Given widespread use of mandatory minimums in this country, a five-year mandatory minimum sentence for receiving child pornography is not constitutionally unusual, despite the widespread view that Congress ought to reconsider their widespread statutory use. See Appendix C, infra; see also Hinojosa, supra, at 1-2.
The Eighth Amendment’s Cruel and Unusual Punishment Clause, in addition to prohibiting wantonly painful or unique punishments, also prohibits sentences that are grossly disproportionate to the crime committed. Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) (“The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.”). Five years’ imprisonment is not so disproportionate to the crime of “receiving” child pornography as to be unconstitutional under the Eighth Amendment. The offense — in the abstract and assuming some degree of evil intent— could be found by Congress to constitute a serious threat to children, supporting a reasonably harsh utilization of the criminal law to deter and minimize sexual abuse of youngsters.
As applied to Polizzi, a sentence of five years would be considered by many to be shockingly disparate, given the unique circumstances of his case. But, because application of the mandatory minimum would not be considered unconstitutionally grossly disproportionate, defendant’s constitutional challenge on this ground fails.
Proportionality analysis requires an evaluation of the relationship of the offense to the punishment. It takes into account the offender’s culpability. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (giving the example that a life sentence imposed for overstaying a parking meter would be found to be so disproportionate to the crime that it would constitute the type of cruel and unusual punishment forbidden by the Eighth Amendment).
Whether proportionality analysis applies in non-capital cases such as those involving mandatory minimum sentences is unclear. Compare Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (O’Connor, J., concurring in part and concurring in judgment) (“The Eighth Amendment, which forbids cruel and unusual punishment, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” (quoting Harmelin, 501 U.S. at 996-97, 111 S. Ct. 2680 (Kennedy, J., concurring in part and concurring in judgment))) with Harmelin, 501 U.S. at 996, 111 S. Ct. 2680 (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further”). For non-capital cases, it is only an “extraordinary case” where “the gross disproportionality principle reserves a constitutional violation.” Lockyer v. Andrade, 538 U.S. 63, 76, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); see, e.g., Solem, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (holding unconstitutional a sentence of life imprisonment for the passing of a bad check by a convicted felon); Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910) (invalidating a sentence of twelve years’ imprisonment in chains and at hard labor for the crime of falsifying a public document); Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007) (finding cruel and unusual a ten-year sentence for a 17-year-old having consensual oral sex with a 15-year-old).
The Supreme Court has “not established a clear or consistent path for courts to follow” in applying proportionality analysis. United States v. Cunningham, 191 Fed. Appx. 670 (10th Cir. 2006) (quoting Lockyer, 538 U.S. at 72, 123 S. Ct. 1166). In 1983, Solem established a three-part test for determining whether a sentence is unconstitutionally disproportionate:
The court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem, 463 U.S. at 292, 103 S. Ct. 3001.
Eight years after Solem, the Supreme Court refined proportionality analysis in Harmelin, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836. Although there was no majority decision, seven Justices agreed that the Eighth Amendment included a proportionality principle. Since Harmelin, courts have generally applied Justice Kennedy’s analysis in his concurrence. See, e.g., United States v. Angelos, 433 F.3d 738, 753 (10th Cir. 2006), cert. denied, — U.S. —, 127 S. Ct. 723, 166 L. Ed. 2d 561 (2006) (“Justice Kennedy’s opinion in Harmelin ... sets forth the applicable Eighth Amendment proportionality test.”). Justice Kennedy first identified “common principles that give content to the uses and limits of proportionality review”:
All of these principles — [1] the primacy of the legislature, [2] the variety of legitimate penological schemes, [3] the nature of our federal system, and [4] the requirement that proportionality review be guided by objective factors — inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids [5] only extreme sentences that are “grossly disproportionate” to the crime.
Harmelin, 501 U.S. at 1001, 111 S. Ct. 2680. Subsequently, Justice Kennedy applied a modified Solem test: A court must initially consider the nature of the crime and its relation to the punishment imposed. Only if that analysis gives rise to an inference of disproportionality should a court then consider the punishment for other offenses in its jurisdiction and the punishment for similar offenses in other jurisdictions. See, e.g., id. at 1005, 111 S. Ct. 2680 (declining to perform any comparative jurisdictional analysis because the gravity of the prisoner’s offense — possessing more than 650 grams of cocaine — was not grossly disproportionate to his sentence of mandatory life in prison without possibility of parole).
Justice Kennedy also warned that courts should be reluctant to invalidate sentencing schemes under the disproportionality principle. An overly aggressive approach is not consistent with our scheme of federalism. See id. at 1000, 111 S. Ct. 2680. Both states and the federal government must have the freedom to experiment in matters of criminal policy. See id. Holding a sentencing law unconstitutional involves a rejection of the judgment of a legislature, which in some sense entails rejecting the moral judgment of the community it represents. See id. at 1006, 111 S. Ct. 2680; see also Arizona v. Berger, 212 Ariz. 473, 134 P.3d 378, 385 (2006) (en banc), cert. denied, — U.S. —, 127 S. Ct. 1370, 167 L. Ed. 2d 159 (2007) (noting that Solem, in which the Supreme Court invalidated a judicially-imposed sentence, did not involve the “traditional deference” that courts must afford legislative policy choices). Courts must show restraint when wielding the powerful and blunt disproportionality club.
Under these principles, Polizzi’s sentence is not unconstitutionally disproportionate. Polizzi’s unique circumstances— most notably the private and passive nature of the crime, his abused childhood, his mental problems, and the severe penalty he faces — might be considered by many to give rise to an inference of gross disproportionality. Polizzi is “the rare case in which [this] threshold comparison” is probably met, making intrajurisdictional and interjurisdictional analyses appropriate. Harmelin, 501 U.S. at 1005, 111 S. Ct. 2680. Yet, after consideration of Polizzi’s punishment with those he would receive in this jurisdiction for comparable offenses as well as those he would receive in other jurisdictions for the same crimes, it is apparent that a sentence of five years’ imprisonment cannot be found to be unconstitutionally disproportionate. He would receive more than five years in many state courts and for many other similar federal crimes.
Under Harmelin, the initial inquiry is to compare the seriousness of the offense to the harshness of the proposed penalty — whether the mandatory five-year prison sentence is grossly disproportionate to Polizzi’s offense of possessing and receiving via the Internet the charged images depicting minors engaged in sexually explicit conduct. “In weighing the gravity of the offenses, the court should consider the offenses of conviction and the defendant’s criminal history, as well as ‘the harm caused or threatened to the victim or society, and the culpability of the offender.’ ” United States v. Angelos, 345 F. Supp. 2d 1227, 1257 (D. Utah 2004), aff’d, 433 F.3d 738 (10th Cir. 2006), cert. denied, — U.S. —, 127 S. Ct. 723, 166 L. Ed. 2d 561 (2006) (quoting Solem, 463 U.S. at 292-94, 103 S. Ct. 3001) (footnote omitted).
Polizzi’s sentence-triggering criminal conduct, as statutorily defined and charged, is his passively receiving and possessing multiple images of child pornography from the Internet in his personal computers in private. Measured by the applicable statutory terms of punishment, defendant’s receipt of the images has been judged by Congress to be more serious than his passive possession. Compare 18 U.S.C. § 2252(b)(1) (five-year minimum) with 18 U.S.C. § 2252(b)(2) (up to ten years, or a fine).
Certainly, Internet transfer of child pornography is serious. It arguably causes great harm. See Part III.D, infra. Here, however, there is no statutory charge of production, distribution, or overt encouragement of commercialization of child pornography, nor allegations of any other improper conduct by the defendant. Cf. Dr. Goldsmith’s Rep., June 9, 2006 (finding that Polizzi did not meet the DSM-IV criteria for pedophilia and was not at risk for abusing children). Despite the fact that receipt and possession of child pornography are classified as “violent crimes” (at least in terms of release and detention pending judicial proceedings), see 18 U.S.C. § 3156(a)(4)(C), Polizzi himself did not engage in any violence or threats of violence in furtherance of, or in connection with, his receipt or possession. “It is well-established that crimes marked by violence or threat of violence are more serious and that the absence of direct violence affects the strength of society’s interest in punishing a particular criminal.” Angelos, 345 F. Supp. 2d at 1258. Polizzi’s passive receipt and possession — which is what was charged — of child pornography is far less serious than the advertisement or distribution of child pornography.
The Supreme Court has noted that there are “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is ‘frightening and high.’ ” Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (citation omitted). Those findings, if they refer to all types of sex offenders under the statutes, are debatable. They fail to take into account differences between voyeurs and pederasts, for example. See, e.g., Parts III.C.2.a.ii, III.D.2, infra.
In the instant case, the defendant appears not to present a risk of overt action. See Dr. Goldsmith’s Rep., June 9, 2006 (finding no risk of continued collection of child pornography). Polizzi has no criminal history, and although he did collect child pornography for some five years before his arrest, he “know[s] it’s wrong.” Trial Tr. 667, 1105. His sincerity was evident at trial.
The seriousness of Polizzi’s offenses cannot be fully understood without considering any resulting harm to individual victims or society. Measuring the harm caused by receipt of child pornography pictures in private is difficult. Looking at such pictures alone in a private, locked room is — in its most immediate sense— non-violent and victimless. Yet the simple existence (and thus any possession) of pornographic images may cause “the child victims continuing harm by haunting the children in years to come.” Berger, 212 Ariz. 473, 134 P.3d 378 (quoting Osborne v. Ohio, 495 U.S. 103, 111, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990)); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002) (“Like a defamatory statement, each new publication of the speech would cause new injury to the child’s reputation and emotional well-being.”); United States v. Sherman, 268 F.3d 539, 547 (7th Cir. 2001) (“The possession, [and] receipt ... of child pornography directly victimizes the children portrayed by violating their right to privacy....”).
Receiving such images contributes to their proliferation. The receipt and possession of child pornography — to the extent that there is a commercial component, see Part III.D, infra — harm society by increasing demand and supporting the distribution chain. Such confounding factors warranting a higher sentence were not charged in the instant case and thus do not support an automatic high statutory minimum term of imprisonment. They might, on balance, warrant a substantial discretionary prison sentence since the defendant’s three eighty-nine dollar credit card payments to join the Hardcore website and download the charged images contributed to the market in child pornography, financially supporting and encouraging the producers and distributors. Because Congress has found “[t]he prevention of sexual exploitation and abuse of children [to] constitute[] a government objective of surpassing importance,” New York v. Ferber, 458 U.S. 747, 757, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982), it has an interest “in attempting to stamp out this vice at all levels in the distribution chain.” Osborne, 495 U.S. at 110, 110 S. Ct. 1691 (emphasis added); see also The PROTECT Act of 2003 (listing congressional findings).
Criminalizing possession of child pornography could be seen as the equivalent of criminalizing the possession of illegal drugs, except that possession in the drug context is physical and active, while, as charged in this child pornography case, possession may be passive. Cf. Part III.A, supra; Harmelin, 501 U.S. at 1002, 111 S. Ct. 2680 (possessing 650 grams of cocaine constitutes a grave threat to society because such an amount yielded “between 32,500 and 65,000 doses” and because “[p]ossession, use, and distribution of illegal drugs represents ‘one of the greatest problems affecting the health and welfare of our population’ ”); Berger, 212 Ariz. 473, 134 P.3d 378 (rejecting defendant’s contention that child pornography was a “victimless” crime because of its equivalence to cocaine possession).
Five years in a federal prison is a substantial punishment. Cf. Solem, 463 U.S. at 289, 103 S. Ct. 3001 (“[A] single day in prison may be unconstitutional in some circumstances.”). Polizzi will be labeled a sex offender while in prison and may have to be kept in protective custody. See, e.g., Arnold v. County of Nassau, 252 F.3d 599, 601 (2d Cir. 2001) (noting that “sex offenders in the protective custody ward are segregated from the general inmate population” and placed in protective custody because “they are at greater risk of assault by other inmates”). Incarceration and registration will be especially difficult for Polizzi given his mental problems and childhood sexual abuse.
Although five years in prison would be a severe penalty for Polizzi, a five-year sentence imposed pursuant to the mandatory minimum would in fact be substantially less that the sentence recommended for him under the Sentencing Guidelines for receiving child pornography: 135 to 168 months. The high guideline sentence adopted by specialists in criminal sentencing — members of the Sentencing Commission — suggests that a five-year mandatory sentence is not disproportionate.
His punishment must be considered with other penalties. Polizzi’s chastening will not be over at the end of his prison term or even of his term of supervised release. Upon his release from prison, he will have to register as a sex offender under both federal and New York law. Each have different, if overlapping, provisions.
Pursuant to the Sex Offender Registration and Notification Act, Title 1 of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C. §§ 16901 et seq.) (hereinafter Adam Walsh Act), Polizzi is a “tier I sex offender.” See 42 U.S.C. § 16911(5)(A) (defining the term “sex offense” to include federal offenses under Chapter 110 of Title 18, which includes 18 U.S.C. § 2252); § 16911(2) (defining the term “tier I sex offender”). As a tier I offender, he will be subject to federal reporting requirements for fifteen years, § 16915(a)(1), with the possibility of early termination after ten years under specified limited circumstances. § 16915(b). Beginning before his release from prison, § 16913(b)(1), Polizzi must register in every jurisdiction where he lives or works. § 16913(a). Any change of residence or employment must be reported in person within three business days. § 16913(c). Polizzi will have to appear in person every year to be photographed and to verify that his information on file remains accurate. § 16916(1). Failure to timely register exposes him to additional prison time. § 16913(e). Law enforcement must notify any area children’s organizations as well as any individuals requesting notification upon any changes in registration.
Registration information for the new National Sex Offender Registry, see § 16919 — most of which will be publicly available on the National Sex Offender Public Website, see §§ 16918, 16920 — includes name, social security number, address, place of employment, and car information. § 16914(a). His fingerprints, DNA, criminal history, physical description, and driver’s license will be in the Registry. § 16914(b). The National Sex Offender Public Website
[S]hall include relevant information for each sex offender and other person listed on a jurisdiction’s Internet site. The Website shall allow the public to obtain relevant information for each sex offender by a single query for any given zip code or geographical radius set by the user in a form ....
§ 16920; see also Corey Kilgannon, Woman with a Mission: Keeping Tabs on Sex Offenders, N.Y. Times, Mar. 18, 2008, at B5.
To be eligible for federal grant money, states must, under the Act, ensure public access to this information:
[E]ach jurisdiction shall make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, all information about each sex offender in the registry. The jurisdiction shall maintain the Internet site in a manner that will permit the public to obtain relevant information for each sex offender by a single query for any given zip code or geographic radius set by the user.
§ 16918(a). Some tier I offenders may be excluded from state websites, but not persons in Polizzi’s situation. Because possession of child pornography is considered a “specific offense against a minor,” his information must be included. § 16918(c)(1); § 16911(7)(G).
New York state sex offender registration requirements are similar to the federal requirements. The New York Sex Offender Registration Act (“SORA”), N.Y. Corr. Law §§ 168 et seq. (McKinney 1996), established the state Sex Offender Registry. See http://criminaljustice.state.ny.us/nsor/. SORA was enacted to assist local law enforcement agencies and to protect communities by: 1) requiring sex offenders to register with the State, and, 2) providing information to the public about certain sex offenders living in their communities. Persons convicted of specific federal crimes, including all federal offenses under 18 U.S.C. § 2252, must register with New York State. See N.Y. Corr. Law § 168-a(2)(d); § 168-b (listing types of registration information required); § 168-f. Under the New York registration system, Polizzi would presumably be classified as a Level 1 (low risk) offender; his exact classification would be determined after a hearing upon his release from prison. See § 168-l (establishing a board of examiners to determine risk level). Level 1 offenders are required to register for twenty years. See § 168-h(1). Information for Level 1 offenders, under current New York State law, is not available to the public. See § 168-q. This is likely to change pursuant to the Adam Walsh Act, assuming New York complies in order to receive federal law enforcement money. New York law also requires Polizzi to report any Internet accounts. See § 168-b(1)(a).
Unlike some other states and municipalities, neither the federal government nor New York State restricts where Polizzi may live or travel. See, e.g., Marcus Nieto & David Jung, The Impact of Residency Restrictions on Sex Offenders and Correctional Management Practices: A Literature Review 3 (2006) (twenty-two states and hundreds of municipalities have enacted some form of residency restrictions prohibiting sex offenders from living within a certain distance of schools, daycare centers, or places where children congregate; some communities have enacted “banishment ordinances” excluding sex offenders altogether); Jamie Fellner, The Wrong Sex Offender Laws: Although Popular, California’s Residency Restrictions and Registries Do Little to Protect Children, L.A. Times, Sept. 18, 2007 (noting that under California’s new Proposition 83, sex offenders released from prison are barred from living within 2,000 feet of any school or park); Jessica Fusco, Stricter Rules for Sex Offenders Approved, Utica Observer-Dispatch, Oct. 10, 2007 (barring certain sex offenders from living in or even entering areas within 1,500 feet of parks, playgrounds, schools and child-care centers in Oneida County, New York). Polizzi may also have conditions attached to his supervised release limiting contact with computers or children.
As a registered sex offender, Polizzi’s penalty for his crime will extend until his required period of registration ends. Some courts have characterized sex offender registration as non-punitive. See Smith, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (holding that Alaska sex offender registration statute was not intended as additional punishment for someone convicted of a sexual offense and thus did not violate the Ex Post Facto Clause, but rather was a civil regulation imposed for the narrowly defined interest in protecting public safety). So too, with much the same reasoning, was branding or incarceration of a witch, defined out of the realm of punishment. Bengt Ankarloo & Stuart Clark, Witchcraft and Magic in Europe 172-73 (1999). It is hard to think of a more severe scourging than publically marking someone as a sex offender, requiring that his personal information be available on demand to the public and that all neighborhood schools and children’s organizations be notified whenever he gets a new car or updates his driver’s license. See, e.g., Fellner, supra (“There is ample evidence ... that unfettered access to registries can and does lead to extensive harassment and sometimes violence against former offenders.”); cf. Nathaniel Hawthorne, The Scarlet Letter (1850).
In comparing the severity of his offenses to that of his contemplated punishment, Polizzi’s culpability is a critical factor. Five members of the jury publicly questioned Polizzi’s culpability (although not his guilt). There was strong support among the jurors for a non-jail sentence due to the unique circumstances of his case: he was not culpable enough in the minds of some of them to go to prison. See Part II.B.8, supra.
Polizzi embodies the rags-to-restaurant owner successful immigrant archetype. He has no criminal history. Trial Tr. 165. His professed reason for searching for child pornography had some non-criminal roots in his enduring psychological trauma from his severe childhood sexual abuse in Sicily, including being sexually assaulted by his uncle, a family friend, and two police officers (as well as witnessing the murder of his friend by other police officers). See Part II.A.1, supra.
To the extent that members of the jury had in mind mental health treatment rather than long incarceration, they apparently credited defendant’s testimony. See Def.’s Letter 2 n. 3, Dec. 5, 2007, Docket Entry No. 114 (reporting that it was generally accepted by most of the jurors that the incidents in Sicily did happen, that jail would serve no purpose, and that Polizzi should receive psychiatric counseling in lieu of prison); cf. Richard B. Krueger, The New American Witch Hunt: Demonizing Sex Offenders by Passing Tough, Mindless Laws Rather than Treating Them Makes Little Sense, L.A. Times, Mar. 11, 2007. Also see the many filed letters from the community supporting leniency in sentencing the defendant.
There is little doubt that childhood sexual trauma psychologically scarred Polizzi. At trial, the parties disputed the exact nature and extent of Polizzi’s diagnoses, but no one seriously denied that he was suffering from some kind of post-traumatic stress. See Part II.B.6, supra. That the jury did not believe his mental illnesses rose to the level of legal insanity under the federal Insanity Defense Reform Act, 18 U.S.C. § 17, does not imply that his culpability is the same as a defendant with no mental health problems. Cf. Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (prohibiting the execution of juveniles); Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (barring the execution of developmentally disabled defendants because their cognitive and behavioral impairments reduce moral culpability and the ability to appreciate the deterrent effects of criminal sanctions). The insanity defense is extremely narrow and “rarely successful, with less than half of one percent of trials actually resulting in exculpation due to insanity.” Helen Shin, Is the Death of the Death Penalty Near?, 76 Fordham L. Rev. 465, 492 (2007). It is “often an inadequate safeguard for mentally ill defendants.” Id.
Polizzi’s own history of sexual victimization and his serious mental health problems do not morally or legally excuse his crime, but they probably contributed to its commission and lessen his culpability.
Because of Polizzi’s unique circumstances, the private, passive nature of his crime, lack of criminal history, low risk of recidivism, psychological disabilities, and reasons for searching for child pornography, the mandatory minimum of five years’ imprisonment is sufficiently severe so that, under Harmelin, there is an inference of gross disproportionality. Whether his sentence violates the Eighth Amendment, however, depends upon the second and third Harmelin factors, requiring an intra- and extra-jurisdictional comparison. See Harmelin, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836.
A comparative analysis of other federal punishments for similar offenses reveals that a five-year term of imprisonment is not disproportionate. Two comparisons are useful: first, with other sentences that have been imposed for possession-related crimes, and second, with the mandatory minimums that apply to other child sex crimes. See Solem, 463 U.S. at 291, 103 S. Ct. 3001 (noting that if within the same jurisdiction, “more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.”).
In other contexts where federal law punishes possession of a forbidden object, sentences can run much higher than five years. Possession of drugs or a firearm can, for instance, result in very lengthy sentences pursuant to other federal mandatory minimums or harsh sentencing guidelines. See, e.g., Appendix C, infra; 21 U.S.C. § 844(a) (five years for possession of more than five grams of cocaine base); Logan v. United States, — U.S. —, 128 S. Ct. 475, 169 L. Ed. 2d 432 (2007) (sentencing defendant to fifteen years on a felon-in-possession of a firearm charge); Angelos, 345 F. Supp. 2d at 1258 (imposing fifty-five years for possession of a firearm while distributing marijuana).
For other child sex crimes, federal law mandates prison terms that are as long as, or longer than, the one at issue here. See also Appendix C, infra. A second conviction for possession of child pornography, for example, requires a ten-year minimum. See 18 U.S.C. § 2252A(a)(5). Persons who employ or persuade a minor to engage in the production of child pornography are subject to a fifteen-year mandatory minimum. Sexual abuse of a child under twelve requires thirty years. See 18 U.S.C. § 2241(c). But the grading of punishments is not fine-grained. Distribution of child pornography, for instance, an arguably more culpable act, is subject to the same five-year mandatory minimum term under 18 U.S.C. § 2252(b)(1) as receipt. See Part III.D.2, supra.
Despite discrepancies, it cannot be said that a five-year sentence is excessive in comparison to those required for other federal crimes.
Disproportionality analysis requires a court to examine the punishments for similar offenses in other jurisdictions to determine whether the applicable penalty is grossly excessive. In such an inquiry it is helpful to look at what types of sentences Polizzi would have received under state law for similar offenses. See Appendix B, infra. This analysis cuts strongly in favor of the statute’s constitutionality, since Polizzi could have received a comparable sentence in many states.
Had Polizzi been prosecuted in New York State courts, his conviction for possession — New York state does not criminalize receipt — of child pornography would be a class E felony, which carries a minimum sentence of one year’s imprisonment and a maximum of four. See N.Y. Penal Law § 70.00; § 268.11. (In New York, all child pornography crimes, including producing, directing, and promoting, entail the same one-year minimum term, though they have different maximums. See § 70.00.) See also, e.g., Nate Schweber, II Arrested in New Jersey on Child Pornography Charges, N.Y. Times, Oct. 5, 2007, at B4 (noting that the maximum penalty for possession of child pornography in New Jersey is eighteen months); Hillary Wool, Former Valedictorian Is Guilty in Child Pom Case, Dartmouth.com News, Sept. 26, 2006 (state defendant received two years of prison and five years of probation).
An analysis of child pornography offenses as punished by state law, see Appendix B, infra, reveals that the federal penalties for receipt and possession of child pornography are similar to — and not far in excess of — those of many states. In recent years, most states have enacted stricter and more punitive laws for child pornography and related offenses, especially those involving computer crimes. See Eric R. Diez, “One Click, You’re Guilty”: A Troubling Precedent for Internet Child Pornography and the Fourth Amendment, 55 Cath. U.L. Rev. 759, 765-66 & n. 81 (2006). State statutory schemes primarily prescribe sentences in one of two ways: within the text of the statute itself, or, by designating the offense as a specific class of felony or misdemeanor. If the language of the statute indicates that the sentence is mandatory or the prescribed term for the specific class is mandatory, (i.e., “shall”), the offense is treated below and in Appendix B as having a mandatory minimum. Medians are based upon all states which prescribe a minimum term of incarceration either specific to the child sex offense or the prescribed class of offense.
Forty-nine states now criminalize simple possession of child pornography. Nebraska, which criminalizes only possession with intent to distribute, is the exception. See Child Pornography Prevention Act, Neb. Rev. Stat. §§ 28-1463.01-05 (criminalizing only possession with intent to “rent, sell, deliver, distribute, trade, or provide to any person” child pornography). Twenty-two out of the forty-nine states prescribe mandatory minimum sentences for possession. Five of these twenty-two provide for statutory mandatory minimums specific to child sex offenses. See Ga. Code Ann. § 16-12-100(2)(g)(1) (five years); La. Rev. Stat. Ann. § 14:81.1(E) (two years); Miss. Code Ann. § 97-5-35 (five years); Mont. Code Ann. § 45-5-625 (four years if the child depicted is under sixteen years of age, and 100 years if the child is under twelve); Nev. Rev. Stat. § 200.730 (one year). The seventeen other states’ mandatory minimum sentences correspond to those provided for specific classes of felonies. See, e.g., Ala. Code § 13A-12-192 (classifying possession as a Class C felony, which carries a thirteen-month mandatory minimum). Minimum mandatory terms of imprisonment range anywhere from six months (Indiana and Ohio) to 100 years (Montana). The median mandatory minimum sentence is two years.
In comparison to the forty-nine states criminalizing possession, only thirteen prohibit the knowing or intentional receipt of child pornography; two of the thirteen criminalize only receipt with intent to distribute, sell, etc. The mandatory minimum sentences for simple receipt range from six months’ imprisonment (Ohio), Ohio Rev. Code Ann. § 2907.321, to ten years (Arizona, if the child depicted is under fifteen), Ariz. Rev. Stat. Ann. § 13-3553. Four of the eleven states that criminalize both receipt and possession prescribe the same punishments for both. The median mandatory minimum sentence for receipt is four years.
The median mandatory sentence for possession with intent is five years, which is equal to that provided by federal law. See 18 U.S.C. § 2252(a)(3). For receipt, the states’ median mandatory sentence of four years is comparable to the federal five-year minimum. It is striking, however, that only eleven states criminalize receipt without intent (and only thirteen criminalize any form of receipt). In thirty-nine states, Polizzi would appear to be liable for possession only, with a median two-year mandatory minimum, substantially less than the five years he faces under federal law for receipt.
Possession of child pornography in some foreign jurisdictions is subject to penalties similar to those in the United States. In England, the possession of child pornography carries a maximum term of five years’ imprisonment, but no mandatory minimum. Criminal Justice Act, 1988, Ch. 33, § 160 (Eng.). In Hong Kong, the possession of child pornography may be punished by up to five years on indictment or two years on summary conviction. Prevention of Child Pornography Ordinance, (2003) Cap. 579, 3 (H.K.). The Canadian federal criminal code does not criminalize receipt, but does criminalize the possession of, and access to, child pornography. For the former, the mandatory minimum is forty-five days (conviction by indictment) or fourteen days (summary conviction); the maximum for possession is five years or eighteenth months for access. See Canada Criminal Code, R.S.C., ch. 46 § 163.1 (1985); see also Wade Riordan Raaflaub, Parliamentary Information and Research Service, Library of [Canadian] Parliament, Mandatory Minimum Sentences (Jan. 2006), http://www.parl.gc.ca/information/library/PRBpubs/prb0553-e.pdf.
Given the similarities between state and federal mandatory minimum sentences, the federal statute is not disproportional. Federal law is significantly more lenient than that of several states. See, e.g., Berger, 134 P.3d at 385 (holding that a sentence of twenty consecutive ten-year prison terms for twenty counts — three less than Polizzi— of possession of child pornography for a defendant with no criminal history did not constitute cruel and unusual punishment because when viewed separately, each ten-year sentence was not grossly disproportional to the crime of possession).
That most states do not follow federal law in separating receipt from possession is not dispositive of the issue of proportionality. It does, however, give weight to the argument that receipt is enough of an equivalent to possession that criminalizing both is redundant, and that penalizing them differently is irrational.
A sentence of five years’ imprisonment cannot be said to violate the Cruel and Unusual Clause’s proportionality principle so long as the statute of conviction itself is valid and some implied non-passive element of mens rea is assumed. As demonstrated in Part III.A, supra, the receiving provision is arguably unconstitutional. But the required minimum sentence would not be so grossly disproportional as to be unconstitutional. Polizzi’s sentence, in comparison to those provided for other federal crimes, is not constitutionally excessive and would not violate the Eighth Amendment.
Defendant and others have argued that the federal laws criminalizing child pornography are irrational and therefore unconstitutional. These arguments are not tenable. Under rationality review, a statute will be deemed constitutional unless there is “no reasonable basis” on which the Act can be upheld, or Congress has acted in a “patently arbitrary or irrational way.” See, e.g., U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 176, 177, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980). This standard is not exacting. See Dallas v. Stanglin, 490 U.S. 19, 24-25, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989) (noting that rational basis scrutiny is one of the “most relaxed” and “tolerant” forms of judicial scrutiny). A statute must be upheld if it constitutes a rational means to an end that may be legitimately pursued by government, i.e., that a reasonable ground for its enactment can be found, regardless of whether Congress actually had that rationale in mind when enacting the statute. See, e.g., Fritz, 449 U.S. at 178-79, 101 S. Ct. 453 (“Where, as here, there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision ....’”) (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960)). First Amendment considerations, which require a higher level of scrutiny, do not apply to child pornography. See Part III.F, infra.
Here, there are a number of concerns that rationally could have led — and apparently did lead — Congress to pass child pornography legislation. The legislature has a legitimate interest in protecting the nation’s children. “It is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ” Osborne v. Ohio, 495 U.S. 103, 109-10, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990) (quoting New York v. Ferber, 458 U.S. 747, 756, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)); Ferber, 458 U.S. at 757, 102 S. Ct. 3348 (“The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.”). Both through its initial production and ongoing publication, child pornography harms and demeans those abused. See Osborne, 495 U.S. at 111, 110 S. Ct. 1691 (noting that the materials’ continued existence “haunts the children in years to come.”). Images depicting child pornography, it is thought, can be used by pedophiles “to seduce other children into sexual activity.” Ferber, 458 U.S. at 760, 102 S. Ct. 3348; see also S. Rep. No. 104-358, at 13 (1996) (“Child molesters and pedophiles use child pornography to convince potential victims that the depicted sexual activity is a normal practice; that other children regularly participate in sexual activities with adults or peers.”). To discourage pernicious international conspiracies and trade, prohibiting “this vice at all levels in the distribution chain,” Osborne, 495 U.S. at 110, 110 S. Ct. 1691, may be “[t]he most expeditious if not the only practical method of law enforcement ... to dry up the market for this material.” Ferber, 458 U.S. at 760, 102 S. Ct. 3348. Criminalizing possession, moreover, encourages the destruction of existing images. Osborne, 495 U.S. at 111, 110 S. Ct. 1691. Enforcement of laws criminalizing the production, distribution, and possession of child pornography is rationally related to these goals; appellate courts have repeatedly upheld such criminal statutes based on these reasons. See, e.g., Osborne, 495 U.S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98; Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113; Connection Distributing Co. v. Keisler, 505 F.3d 545 (6th Cir. 2007).
Whether child pornography actually encourages its viewers to commit further physical sexual offenses has been disputed. The first congressionally-funded study, the 1970 Presidential Commission on Obscenity and Pornography, suggested no link between the two. The Effects Panel, The Impact of Erotica, Report of the Commission on Obscenity and Pornography 169 (1970). Almost twenty years later, a second Commission came to the opposite conclusion. U.S. Dep’t of Justice, Attorney General’s Commission on Pornography, Final Report (1986); Glen O. Robinson, The Electronic First Amendment: An Essay For the New Age, 47 Duke L.J. 899, 960-61 (1998); see also Report of the U.S. Senate Permanent Subcommittee on Investigations on Child Pornography and Pedophilia (1986) (“No single characteristic of pedophilia is more pervasive than the obsession with child pornography. The fascination of pedophiles with child pornography and child abuse has been documented in many studies and has been established .... ”). One recent report notes that child pornography may encourage sexual aggression by viewers, although research (and research subjects) is limited by the nature of the material:
The type of pornography believed to play a role in the etiology of socially learned sexual aggression is child pornography. This is different from rape pornography in that the victimized character is a child rather than a woman, but there may still be a considerable level of sexual violence or aggression toward the victimized character. Social learning theory proposes that a select group of individuals may view or read child pornography and subsequently develop sexual interest in children similar to those portrayed in the pornographic material. These individuals would observe models engaging in the sexual abuse of young children and would internalize this behavior as an acceptable form of sexual interaction.
Research on the applicability of child pornography to social learning theory has been somewhat limited, however. Unlike studies using rape pornography, child pornography has not been shown to research participants to elicit sexual arousal. Instead, researchers have relied on child molesters’ reports of their use of various pornographic materials. Child molesters have reported increased usage of child pornography prior to committing their offenses. Recent research has suggested that use of child pornography is a reliable indicator of sexual interest in children, perhaps more so than previous offenses against children or other sexually deviant behaviors. Across these studies, offenders have reported the use of pornography to desensitize themselves, overcome their inhibitions, and arouse themselves in preparation for the sexual victimization of a child. Child pornography also appears to reduce empathy toward child victims ..., much in the same way that rape pornography reduces empathy or compassion for female victims. Portrayals of enjoyment on the part of the child victim, or a lack of negative consequences for the perpetrator, may help reinforce the pedophile’s views of children as an obtainable or appropriate sexual target.
Jill D. Stinson, Bruce D. Sales, & Judith V. Becker, Sex Offending, Causal Theories to Inform Research, Prevention and Treatment 87 (2008). It should be noted, however, that “no direct evidence of causality” has been found. See U.S. Dep’t of Justice, Project Safe Childhood, Protecting Children from Online Exploitation and Abuse 12 (2006). While hard data is difficult to come by, “the U.S. Postal Inspection Service reports that about one-third of the 2,718 people it has arrested on child exploitation charges since 1997 — arguably a skewed sample — also committed ‘contact offenses’ against children.” See Jerry Markon, Crackdown on Child Pornography: Federal Action, Focused on Internet, Sets Off a Debate, Wash. Post, Dec. 15, 2007, at A1.
Based upon available evidence, Congress could make rational findings that: 1) publishing pictures of children in pornographic poses is demeaning to those abused, and abuse is compounded by publication; 2) publishing, particularly on the Internet, encourages predation by viewers; and 3) dealing in child pornography is an international entrepreneurial crime, difficult to ferret out and to deter, requiring criminalization of, and high penalties for, the entire industry, including consumers. Given the dangers involved, these findings permit holding that the charging statutes and mandatory penalties applicable to the instant case pass rationality review.
Other arguments against the rationality of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B) arise from the fact that 1) they criminalize all possession and receipt of child pornography, without distinguishing between those defendants who pay for the materials and those who do not; and 2) they distinguish between possession and receipt, punishing the latter much more harshly than the former. These challenges fail. Congress’s decision to ban all types of possession could rationally have been based on the conclusion that a total prohibition would more quickly and fully destroy the market for child pornography. And, as many courts have concluded, Congress could have rationally decided that receipt is a more serious crime than possession.
Criminal responsibility for receipt and possession does not require any “purchase” or “commercial” element. Congress specifically eliminated the original commercial purpose requirements from many provisions of the statute in 1984. See Pub. L. No. 98-292, 98 Stat. 204 (1984). Added in 1990, the possession subsection never included a commercial element. See Pub. L. No. 101-647, 104 Stat. 4818 (1990). Because of the “unique realities of the child pornography market,” see United States v. Holston, 343 F.3d 83, 85-86 (2d Cir. 2003), Congress recognized that much of the trafficking and production sought to be curbed is non-commercial in nature. See id. at 86 (“Generally the domestic material is of the ‘homemade’ variety, while the imported material is produced by commercial dealers.”) (quoting H.R. Rep. 98-536, 1984 U.S.S.C.A.N. 492, 508). Traders or lenders who do not exchange or transport materials for a commercial purpose, but rather to broaden their “collections,” constitute an “appreciable number” of child pornography traffickers. 1984 U.S.S.C.A.N. at 508. Whether “those who initiate or carry out these schemes have a profit motive or commercial purpose” is irrelevant to the children whose abuse is depicted. Id. at 502-03. Given the serious dangers posed by all types of child pornography, deference owed to the legislature under rationality review supports the conclusion that the lack of a commercial requirement does not sustain a viable constitutional challenge.
A more serious constitutional problem arises from section 2252’s criminalization of both receipt and possession. Especially in the Internet age, receipt and possession may constitute the same act. See Part III.A, supra; cf. United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) (“[S]imultaneous conviction for both receipt and possession of [the same] child pornography violates the Fifth Amendment’s prohibition on double jeopardy”; receipt and possession are multiplicitous); United States v. Kamen, 491 F. Supp. 2d 142, 152 (D. Mass. 2007) (establishing that possession is a lesser included offense of receipt of child pornography as a matter of law); cf. United States v. Farrelly, 389 F.3d 649, 657 (6th Cir. 2005) (recognizing, in context of discussion of an earlier guideline version, that receipt is more properly connected with possession than with trafficking); United States v. Skotzke, No. 06-20475, 2007 WL 1584219, at *5 (E.D. Mich. May 31, 2007) (noting placement in the current Guidelines of U.S.S.G. § 2G2.2(b)(1), an ameliorative provision applicable where receipt is devoid of intent to distribute). But see Kamen, 491 F. Supp. 2d at 150 (“[R]eceipt necessarily entails possession, but possession of child pornography does necessarily require receipt.”); Skotzke, 2007 WL 1584219, at *4 (“[T]he offense of receipt targets those who intentionally seek out child pornography because such behavior contributes to the demand and the survival of the child pornography industry .... Accordingly, a consumer who purchases child pornography for his own use may be charged with receipt, and this is not multiplicitous of a charge of possession.”). A single mouse click opening an email can render a person guilty of both receipt and possession. See United States v. Kuchinski, 469 F.3d 853, 861 (9th Cir. 2006) (“[A] person does knowingly receive and possess child pornography images when he seeks them out over the internet and then downloads them to his computer.”) (emphasis added); United States v. Romm, 455 F.3d 990, 998 (9th Cir. 2006), cert. denied, — U.S. —, 127 S. Ct. 1024, 166 L. Ed. 2d 772 (2007) (defining receipt of child pornography as “knowingly [taking] possession”). Because the guilty verdict on the receiving counts is set aside, see Part IV.B, infra, any potential duplicity objections are moot, as noted in Part III.A, supra; they may be raised at retrial of the receiving counts on a double jeopardy motion.
To create separate offenses for receipt and possession — with a mandatory minimum applicable to one but not the other— arguably does not represent the most lucid or internally consistent punitive scheme. That few federal offenses entail mandatory minimums, see Appendix C, infra, while most permit sentences in accordance with post-Booker judicial discretion, does present an opportunity for unfairness in individual cases. Yet the legislature’s decision to enact mandatory minimums for some offenses but not others does not make a specific mandatory minimum sentence irrational. See United States v. Vargas, 204 Fed. Appx. 92, 95 (2d Cir. 2006) (“[T]here is no right to individualized sentencing, and Congress may constitutionally prescribe mandatory sentences or otherwise constrain the exercise of judicial discretion so long as such constraints have a rational basis.”). Even the lack of longer mandatory minimums for arguably more serious crimes can be justified as rational. See, e.g., United States v. Pabon-Cruz, 391 F.3d 86, 93 n. 9 (2d Cir. 2004) (noting that the district court, among other things, “found that the disparity between the mandatory minimum sentence imposed on Pabon-Cruz for the advertising count and the lack of a mandatory minimum sentence for the more serious crimes of creation of child pornography or of sexual abuse of children was ‘not irrational,’ because there is less need for mandatory minimum sentences for violent crimes that judges are inclined to punish harshly.”).
Given the similarities between computer-based receipt and possession, it might be more rational to classify and punish them similarly under 18 U.S.C. § 2252(b)(2), subject to a statutory incarceration term of zero to ten years. Most courts that have confronted the disparity in punishment between the two offenses have concluded, however, that it is rational because of receipt’s closer links to the marketplace. See, e.g., United States v. Watzman, 486 F.3d 1004, 1009 (7th Cir. 2007); United States v. Myers, 355 F.3d 1040 (7th Cir. 2004) (“It is certainly not irrational to punish more severely the person who knowingly receives such material, because it is that person who is creating and/or perpetuating the market for such material.”); United States v. McElheney, 524 F. Supp. 2d 983, 1001 (E.D. Tenn. 2007) (“Someone who merely possesses child pornography is not as active in the market as someone who receives child pornography, so there is a rational basis for Congress’s decision to impose different sentences for those offenses.”).
By this reasoning, receipt is a more serious offense than possession, and the distribution or sale of child pornography should be punished even more harshly than receipt. Yet, as another example of section 2252’s odd penalty structure, a defendant who actively distributed illicit images would be subject to the same mandatory minimum as one prosecuted for passive receipt. A defendant found to have distributed, reproduced with intent to distribute, shipped, or transported the same 5,000 images as Polizzi received, perhaps by emailing hundreds of people or shipping boxes of videotapes, could be sentenced to the same five-year mandatory minimum (though the recommended guideline sentence would be higher). See 18 U.S.C. § 2252(a)(2) (“[A]ny person who ... knowingly receives, or distributes, any visual depiction [of a minor engaged in sexually explicit conduct] or knowingly reproduces any visual depiction for distribution ... shall be punished” by at least five years’ imprisonment under section 2252(b)(1)) (emphasis added); § 2252(a)(1) (shipping and transporting). Polizzi could have been running a child pornography business out of his garage, earning great sums of money by selling the images worldwide, and would be still subject to the same five-year mandatory minimum.
The statute does seem to lack a relationship between degree of heinousness and amount of punishment. In drafting criminal statutes, however, Congress is not held by the Constitution to a precise calculus of harm and risk. Based on the rationale and precedent distinguishing receipt from possession and finding the former more severe, it cannot be said that the hierarchic penalty organization of this statute is irrational. Including a mandatory minimum sentencing scheme in the statutory regulation of child pornography in order to advance the legitimate governmental interest of protecting children is not irrational.
A canon of statutory interpretation, the rule of lenity requires that in construing an ambiguous criminal statute, a court should resolve any ambiguity in favor of the defendant. See, e.g., Bifulco v. United States, 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980); United States v. Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971) (“[W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant”). See generally Markus D. Dubber & Mark G. Kelman, American Criminal Law: Cases, Statutes, and Comments 123-53 (2005).
The doctrine of lenity is based upon the concern that statutes provide fair warning of what conduct is criminalized:
The rule of lenity concerns situations in which a legislature fails to give notice of the scope of punishment by leaving “a grievous ambiguity or uncertainty in the language and structure of the statute, such that even after a court has seized everything from which aid can be derived, it is still left with an ambiguous statute,”
Chapman v. United States, 500 U.S. 453, 463, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991), in which case the rule of lenity tips the scales in favor of the defendant by requiring the court to impose the lesser of two penalties. Sash v. Zenk, 439 F.3d 61, 64 (2d Cir. 2006) (quotation omitted); see, e.g., United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004) (applying rule of lenity; ambiguity led to pro-defendant interpretation); see also Part III.A, supra (discussing the need for statutory clarity to avoid vagueness and overbreadth concerns).
It is the legislature — rather than a judge — that ought to specify what acts are prohibited. See Bass, 404 U.S. at 348, 92 S. Ct. 515 (noting that the rule of lenity protects the principle that “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity”). Given the harshness of modern sentencing guidelines and statutory penalties, however, some have advocated lenity’s resurgence. See, e.g., Elkan Abramowitz & Barry A. Bohrer, The Rule of Lenity in Sentencing, N.Y.L.J., Mar. 4, 2008, at 4 (“[W]ith mandatory minimum sentences ..., criminal justice may be well-served by revisiting the applicability of the rule of lenity to a sentencing process still replete with ambiguity and prone to undue severity in more than the occasional case.”).
But the lenity doctrine — at least in its traditional application of choosing the lesser of two ambiguous penalties— does not apply here. The five-year mandatory minimum term of imprisonment for receiving child pornography and the ten-year maximum for possession are clear. But see Part III.A, supra (noting the statute’s ambiguity regarding the required mens rea).
Neither does 18 U.S.C. § 2252 nor any other mandatory minimum provisions contain an implicit reasonableness limitation, which other courts have used in applying the principle of lenity. See Zadvydas v. Davis, 533 U.S. 678, 682, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001) (“Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review.”). Although it might be better policy if mandatory minimums were “presumptively reasonable” but rebuttable, id. at 701, 121 S. Ct. 2491, Congress has exercised its constitutional power not to choose that route.
The rule of lenity does not stand between Polizzi and conviction. In the area of child sex offenses, Congress’s design appears to run counter to the principle Congress has expressed elsewhere that sentences should be no harsher than necessary to accomplish goals such as general deterrence. Compare 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary”) with § 3553(b)(2) (in child crimes and sexual offenses, “the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless ...,” omitting the “sufficient, but not greater than necessary” language of subdivision (a)). But see United States v. Selioutsky, 409 F.3d 114, 117 (2d Cir. 2005) (“[T]he Booker rationale requires us to consider subsection 3553(b)(2) to be excised.”). While Selioutsky may have accomplished death by excision of 18 U.S.C. § 3553(b)(2), its ghost whispers from the grave Congress’s special desire for heavy penalties in sexual offenses against children. Like Hamlet, we ignore the spectral reminder of congressional concern for children at our peril.
There is a sharp difference between our legal control through the criminal law of pornography depicting adults and that involving children. The former has been gradually loosened and the latter tightened. A brief review of the diverging developments in the context of free speech doctrine is required to understand how the deep aversion for child pornography has been reflected in a society increasingly tolerant of flaunting adult sexuality.
Despite the ringing pronouncement of the First Amendment, U.S. Const. amend. I. (“Congress shall make no law abridging the freedom of speech, or of the press.”), our freedoms related to speech are not absolute, particularly when public morals or private reputation may be endangered. See Roth v. United States, 354 U.S. 476, 482, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) (“The guaranties of freedom of expression in effect in 10 of the 14 states which by 1792 had ratified the Constitution, gave no absolute protection for every utterance.”); Robertson v. Baldwin, 165 U.S. 275, 281, 17 S. Ct. 326, 41 L. Ed. 715 (1897). The Supreme Court has historically identified libel, fighting words, and obscenity as categories of speech over which the government has some regulatory power. While child pornography is a category of “speech” that may constitutionally be controlled, see Part III.F.2.b, infra; see, e.g., New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); Kathleen M. Sullivan & Gerald Gunther, Constitutional Law 860-66 (16th ed. 2007), non-obscene adult pornography is not.
The term pornography is derived from the Greek word, pomographos, which translates to the “writing of harlots.” Webster’s 3d New International Dictionary 1767 (1993). An 1864 definition traces the word’s roots to the ancient pictorial representations of the wild celebrations of the Greek god Bacchus. An American Dictionary of the English Language (1864) (“licentious painting employed to decorate the wall of rooms sacred to bacchanalian orgies, examples of which exist in Pompeii”), as quoted in Oxford English Dictionary, Compact Edition (New ed., 1991). Pornography now refers to “(1) a description of prostitutes or prostitution or (2) a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.” Id.
Different societies have had widely ranging views on what constitutes acceptable sexual relationships between children and adults, children and other children, and among adults of different and the same genders. Cf., e.g., Anthony Everitt, Augustus: The Life of Rome’s First Emperor 47, 149-50 (Random House, N.Y. 2006) (describing Julius Caesar’s rumored affair with his grand-nephew; Roman sexual mores apparently freely allowed affairs with slaves and noncitizens of either sex, including children). Views on what delineates the bounds of acceptable pornography also change, as anyone is aware who visits the excavations of Herculaneum— long buried by ashes from Mount Vesuvius — where exuberant pornography is visible. The works of great Renaissance and early Impressionist artists immortalized the images of children as sexual objects. See Massachusetts v. Oakes, 491 U.S. 576, 593, 109 S. Ct. 2633, 105 L. Ed. 2d 493 (1989) (Brennan, J., dissenting) (“Many of the worlds greatest artists — Degas, Renoir, Donatello, to name but a few — have worked from models under 18 years of age”). In any event, a stroll down the recently renovated Greek and Roman galleries of the Metropolitan Museum of Art would illustrate the point.
A fascination with sex and pornography among the elite in modern times is not unknown. See, e.g., Richard Aldous, The Lion and the Unicorn: Gladstone vs. Disraeli 52-54 (1st Am. ed. 2007) (describing former British Prime Minister William Gladstone’s sexual perversions, for which he regularly scourged himself in private penance). The daily press routinely reveals similar sexual eccentricities among some current American leaders. Many less eminent American visitors to Europe carried home supplies of “French pictures” and sexually explicit writings after World War I. Cf. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706-07 (2d Cir. 1934).
A perusal of newspaper stands in cities like New York or Copenhagen would reveal the continuing widespread interest in sexuality and pornography. See, e.g., Elaine Sciolino, A Library Exhibition Not for the Children’s Room, N.Y. Times, Jan. 16, 2008, at E1. Media attention focused on the issue in August 1995 when Calvin Klein released a controversial advertising campaign for his line of jeans critics referred to as the “kiddie porn” campaign. Amy Adler, The Perverse Law of Child Pornography, 101 Colum. L. Rev. 209, 251-52 (2001). The billboards, television and magazine advertisements featured photographs of adolescents posed in provocative positions. Id. at 252. While the clothing advertisements were dropped following the threat of criminal investigation, they proved to be an economic success, boosting sales and creating a collector’s market for the print advertisements. Id. at 253. Billboards, motion pictures and catalogs for clothing retailers continue to demonstrate the fascination of some with the subject. See, e.g., James E. Bristol, Free Expression in Motion Pictures: Child Sexuality and a Satisfied Society,