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Child-porn sentencing questioned

Are federal sentencing guidelines for possessing child pornography too harsh?

Calling the guidelines “draconian,” U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.

Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. “The purveyors or producers of these images deserve the most severe punishment we can give them. My concern is the people who end up possessing it.”

Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession. His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison,

30 days of home confinement and 10 years of probation. The recommended sentence under federal guidelines was five to six years.

Assistant U.S. Attorney Deborah A. Solove appealed Graham’s sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense. The appeals court ordered Graham to resentence the defendant.

But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years. Solove again appealed, and the 6th Circuit court again ruled that Graham’s sentence was too lenient. The court removed Graham from the case.

Judge George C. Smith is to sentence Bistline on Wednesday.

Before deciding on a sentence, judges by law must take into account sentencing guidelines, which essentially are numbers tied to the aspects of a crime. Each crime has a base number — 18 is the number for simple possession of child pornography — and points are added based on the details of the defendant’s case.

If a defendant uses a computer to access child pornography, for example, two points are added to the base number.

The guidelines list a prison-sentence range based on the base number and the additional points. Judges can sentence outside the guidelines but must explain why.

Graham says the guidelines for child-porn possession are outdated. Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way. Adding points for possession of numerous images is unjustified because “current technology produces numerous images with one key stroke or mouse click,” he said.

Assistant U.S. attorneys who prosecute child-porn cases declined to comment on the sentencing guidelines. But they have argued in numerous cases over the years that the pornography would not be produced if there were no market for it, so those who possess it are creating a market for the images.

Solove has pointed out in court documents that the guidelines leave room for lesser sentences. Among the mitigating circumstances: No hard-core pornography is involved; victims in the images are older teens or close in age to the defendant; the child-porn collection is from one download; the defendant has developmental issues; or the collection of images is small.

In its second Bistline ruling, the appeals court wrote that possessing child porn “is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person.” Possession becomes a crime “when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year.”

Graham isn’t alone in his contention that the guidelines are outdated.

A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders.

In 2010, for example, 96 percent of such cases included the use of a computer and involved images with prepubescent minors, the report says. Each triggers a two-point addition to the offense level used to calculate a guideline sentence.

“Most stakeholders in the federal criminal-justice system consider the nonproduction, child-pornography-sentencing scheme to be seriously outmoded,” the report says.

Steve Nolder, a lawyer who directed the federal public-defender offices in Columbus, Cincinnati and Dayton until last year, said the guidelines need to be changed.

“They’re the direct result of the political winds blowing out of Congress,” with legislators having increased the punishment for child-porn offenses within the guidelines in recent years, he said.

Nolder has represented numerous defendants charged with such offenses.

“It’s easy to vilify these people,” he said. “Is prison necessary? Maybe for some people.”

But, he pointed out, a minimum prison sentence for someone convicted of possessing child pornography is not a mandate. The statutory penalty is zero to 10 years, he said, so some defendants should qualify for the lowest sentence — no prison time.

What everyone wants to know, he said, is whether those who view child pornography have a greater tendency to molest children.

“The psychology of that is in its infancy, but right now, the data says no,” Nolder said.

Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences. Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.

Graham said most of the child-porn-possession defendants he sees have no previous criminal record and “are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today’s society, affecting people of all ages.”

Just by being found guilty, he said, they face ruined lives, for both themselves and their families.

“They need to stop it,” he said. “The men who are doing this are going to get caught.”