The opinion is 98 pages. I didn’t download it. I didn’t read it. It will be reversed, as it was last time. But EDNY Senior Judge Jack Weinstein isn’t going to let that stop him from applying the parsimony clause of 18 U.S.C. § 3553(a), which provides:
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.
The emphasis is mine. And Judge Weinstein’s. The Second Circuit can try its best to smack Judge Weinstein for his refusal to impose a sentence that meets their demands of harshness, but they can’t touch him. He’s got life tenure, and he’ll never be tapped for the Supreme Court.
If you think a 98-page decision is long, it’s way shorter than the 400-page decision he issued last time, plus a 9-page rejoinder to the circuit’s reversal. After the last reversal, the question was raised whether this was a demonstration of judicial courage or abdication of responsibility.
Orin Kerr remarked that a “courageous” judicial decision is one that “stretches the law but nicely matches the observer’s policy preferences.” Bill Otis has questioned whether the same “courage” would be praised had the judge deemed the “right thing” to be a substantially harsher sentence, ignoring law and guidelines to mete out severe punishment if that was what the judge decided proper.
Granted, confirmation bias plays a huge role in whether one greets Judge Weinstein’s decision with applause or derision. But as this latest decision makes clear, he doesn’t give a damn what the circuit, or commentators, think. He did what he, as a judge, thinks the law mandates of him.
A Brooklyn judge allowed a convicted child pornographer facing up to eight years behind bars to go free after spending only five days in jail.
Eastern District Judge Jack Weinstein released a 98-page decision describing why he went easy on Raul Vasquez, a 52-year-old married father of five.
“Removing R.V. from his family will not further the interests of justice,” Weinstein wrote in the Jan. 21 decision, which was first reported by the New York Law Journal.
“It will cause serious harm to his young children by depriving them of a loving father and role model, and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family.”
In his opinion, Judge Weinstein used only the defendant’s initials. The Daily News used his full name. After all, defendants deserve no relief from their worst decision being spread across the internet.
R.V. spent five days in custody before making bond. Those are the five days of his incarceratory sentence, with the next seven years spent under supervised release, except that the case will be sent back with an order to impose a sentence of “reasonable” imprisonment.
But R.V.’s description by the Daily News’ Rich Schapiro as a “convicted child pornographer” is a dishonest — no, an outright lie– characterization. It conveys the impression that R.V. created child porn, when his crime was downloading it.
[T]wo dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old.
This is repulsive. For some, it’s incomprehensible that anyone would do such a thing, would want to do such a thing. But that sickness so pervades some people’s sexual souls has no explanation. The question for the court is how many years in prison should go along with this twisted desire. That question can only be answered by referring back to § 3553(a), and what the law seeks to accomplish from the imposition of sentence.
But child-abuse victims’ advocates said they were appalled by Weinstein’s reasoning.
“I think Judge Weinstein’s opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It’s a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives,” said Paul Cassel [sic], a former federal judge who is now a law professor at the University of Utah.
That the explanation of why Judge Weinstein’s parsimony is so wrong would come from Paul Cassell is no surprise. He is, if nothing else, the voice of the victims of child porn. His point is that the “mere act of viewing their images” is an evil in itself that traumatizes and re-traumatizes them throughout their life. But for some twisted desire to see child porn, there would be no reason to create child porn. And each time it’s viewed, the harm is done again.
Cassell has argued this point ad nauseam, and whether you accept its premise depends upon the sufficiency of one’s disgust at child porn. It’s possible to find it utterly repugnant without agreeing that the harm to the child is specifically exacerbated with each viewing. But then, the lack of sympathy toward those who desire to see child porn is manifest. It takes a strong stomach to feel badly for them. It’s easier, as Judge Weinstein mentions, to feel for their children who will share the brunt of a sentence of a sick father.
Yet, the consistency of Paul Cassell’s outrage, as well as the rhetoric in justification of the upcoming Second Circuit reversal, will face a hurdle it didn’t have the last time Judge Weinstein ruled.
Via Brad Heath at USA Today:
For nearly two weeks last year, the FBI operated what it described as one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.
The feds called it “Operation Playpen,” because they love cool names and it makes it sound entirely different when they give it a law enforcement-sounding name rather than the “FBI is distributing child porn.”
The operation — whose details remain largely secret — was at least the third time in recent years that FBI agents took control of a child pornography site but left it online in an attempt to catch users who officials said would otherwise remain hidden behind an encrypted and anonymous computer network. In each case, the FBI infected the sites with software that punctured that security, allowing agents to identify hundreds of users.
Orin explained this one away using the Trolley Problem. He thought my critique of his position was “dumb.” Perhaps. Orin’s a very smart guy, so I take his criticism seriously even if I’m unpersuaded.
But where was Cassell screaming about the harm caused by the FBI in its distribution of child porn? Where is the circuit disapproving of the government committing the same crime, except a thousand times more, when it smacks Judge Weinstein?
One can reasonably disagree with Judge Weinstein’s embrace of parsimony when weighing the factors to be considered under § 3553(a). One cannot, however, shrug off the government’s, and the government’s apologists’, hypocrisy when it does the same thing. And worse.