I do a decent amount of case law research to support our advocacy and reform efforts. Generally come across court decisions that regurgitate the same “frightening and high” hyperbole, but once in a while I’ll come across a case where a judge just gets it.
Such is the case with Judge Karon Owen Bowdre, the Chief US District Judge for the Northern District of Alabama, in her opinion in U.S. v. Nash. The opinion begins:
An odd day arises when a young man, who could legally have consensual sex with his sixteen-year-old girlfriend, will forever be labeled a sex offender for receiving provocative pictures of her that she sent him via text message. Such is the day of modern technology; a day when we not only combat the despicable perversion of child pornography, but also must account for the rampant proliferation of “sexting” among teenagers and young adults. This court, and other district courts across the nation, bear the burden of taking into account these realities of this age of technology, while still imposing a sentence that is “sufficient, but not greater than necessary” to meet the purposes of sentencing.
The facts of the case are 22 year old Nash was in a consensual relationship with his 16 year old girlfriend. Something that is not illegal under Alabama’s age of consent laws. The girlfriend texts him four sexual pictures (“sexting”) and Nash is charged with possession of Child Pornography. The opinion acknowledges, “During an initial interview, E.L. admitted that she was in a consensual sexual relationship with Nash and that she took the pictures of herself and sent them to Nash”.
Notwithstanding the relationship was consensual, legal and the girlfriend transmitted the pictures – Nash was facing serious criminal charges, the consequences of which I don’t need to elaborate for those reading this post.
In her opinion, Judge Bowdre makes it clear that she’s informed herself on the facts containing these types of offenses and she is struggling with the sentence she is required to impose. She notes (in some cases the the opinions of other Judges):
- The court is not alone in this view, as other courts have expressed similar concerns with the Sentencing Guidelines, particularly as they apply to child pornography cases.
- “discretion in sentencing was shifted from judges to prosecutors” and “prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.”
- “[t]here is widespread agreement among judges, lawyers and legal scholars that the guidelines for child pornography offenses are seriously flawed.”
- the Guidelines for child pornography are fundamentally different than most Guidelines because they were neither developed by the Sentencing Commission nor based on empirical evidence, but instead have been created by a hailstorm of enhancements directed by Congress.
- By imposing probation, the court imposes much more than a slap on Mr. Nash’s hand. He will forever be a convicted felon and will forever be labeled a “sex offender” in the state of Alabama. Although Mr. Nash’s father pleaded with the court not to brand his son as such for the rest of his life, the court has no authority to avoid this overly-harsh, life-long result….The court considers the harshness of this “life sentence” in imposing probation in this case.
- The message of the damages of sexting and the egregious consequences it can bring is one that needs to be shared with teenagers and young people, legislative bodies, and members of the justice system.
In 2014, when the decision was rendered, there were approximately three-quarters of a million people on sex offender registries in the United States. Today, that number has increased by nearly two hundred thousand.
Judge Bowdre’s opinion was not just a statement to the defendant or articulated with sufficient detail to avoid appeal, it was a statement to other judges, lawmakers and the public. We need to do more for education, awareness, prevention and we also need to reform our sentencing guidelines. Without these efforts – lives are being ruined.
In my world families solve problems within families. We do not need government interference. Ask my daughter and she can confirm it. Her life was nearly destroyed by “government help” and she was the victim. An old saying…you don’t bilge a shipmate (or son or daughter).
How is it a group of Legeslature can punishments after the judges gavel? Why is it that lawyers just continue to allow this to happan?
This sort of thing started with legislatures and that’s where it has to be fixed. We have too many copycats in the Congress who would like to take pages from the disgraced Sen. McCarthy and his “un-American activities” committee. Various legislators began to add, or rather pump up, the various penalties associated with these laws which themselves are based on fear and ignorance – which is a perfect description for stupidity. All of us should go through the records for the house and the Senate and find who passed and voted on these laws.
When you add in all the family members that are affected by a registrants presence on the Internet as some sort of sex offender or predator, we are a political demographic that accounts for tens of millions of voters. Right now, on the Democratic side of things with all these contenders for the presidential nomination, we should remind these people of just how many votes there leaving on the table if they choose to ignore our issues. We should all keep after them to attend our June conference put on by NARSOL.
I’ve noticed over the years that most rulings favoring registrants are coming out of the federal courts, not the state ones (except a handful from state supreme courts). It’s not hard to figure out why – federal judges and most state supreme court judges are appointed for life, specifically so they would rule according to law, versus politics without fear of getting kicked off the bench for politically unpopular rulings. Superior / criminal court judges are elected and therefore subject to the politics of the moment which, at this time, is hardcore anti-registrant.
The Judges should contact a higher power and explain how some laws are unnecessary. Whether or not it would change anything is doubtful, but it would be on the books somewhere! The Judges maybe could have kept it reasonably, ” OK” before the registry took affect as far as sexting, but the communication technology wasn’t as popular and useful as it is now!. But also as mentioned above the concent age as far as getting involved sexually from one state to the other doesn’t make any since! If a 17 year old boy or girl forest have the ability to know what there are doing, and until the day before his or her 18th birthday. Then it’s ok!. But if a boy or girl can go to a different state with a different age of consent like 15 or 16, the 18 year old can have consensual sex. That is most likely what the judges point is. But why isn’t the age the same in every state?
No response needed! I have often wondered about it that’s all!. 🤔
so its ok to have sex but not ok to have a picture of it… typical tyrannical Elizabethan era lunacy.. unfortunately you will never see an end to it until you demand an end by force. And even then the lunatics will only give you exactly as much as your force demands and not a stitch more..and even at that Power will be seeking to restore that which it abdicated as soon as possible, so even after be vigilant..POWER never gives of itself willingly and anyone who says other wise is a deranged lunatic or a bad liar..The tree of liberty must be watered.. Our founders understood the machinations of corruption.
Just get the government out of bed rooms all together. End of story. There NEVER should be a law against any consensual act. It takes a real sick twist to determine a “victim” in a “consensual act” …We may not “agree” with somethings but if it is consensual it really isn’t our business to agree or disagree. Our only business is what goes on behind our own closed doors. Thinking you have any right in your neighbors business is what created this mess in the first place.
The girl manufactured child pornography, but is she accountable ? Oops; she’s the victim.. The guy, when they came to arrest him arrested his father too ! Dad’s charge ? Misdemeanor for not reporting his son (Dad took this to trial. Dismissed in mistrial, and lots of publicity). But wait ! Dad loses long time job as the high school band teacher. Tries to sue school but loses. Well, back to the son: He’s on the registry of course. Got violated once too for not telling them he moved…How’s the girl doing ? Don’t know; name kept out of all of this.
Targeting Men
Why all of a sudden are they worried about these youngsters being on the registry for life what about some of us who weee charged with crimes that weee not even on the registry oh but our lives are already ruined, I say bull on this , now people are staring to wake up and see that this registry is hogwash, well don’t know about most of you but I know this , if you do the crime then dot have daddy cry about you having to do a life time of bull …but it’s ok for the youth of today not to be on asystem that has ruined a lot of our lives, I say this ,what makes him any difference than us!
11 years ago when i got my cp charge (i was 19 and found it on limewire by accident), the judge in my case said in he court minutes that if it were up to him i would not be branded an s.o., but his hands were tied because of the law
Wow, this is my case almost to a letter. Have been living with this since 2005 due to CP from my then girlfriend. We were legal, it was consensual. Yet, here I sit.
Laws can be Constitutional from state to state, county to county, and city to city…a clear display of how we have lost sight of our nation’s foundation principles and how ‘fake news’ and paranoid fears have convoluted political leadership. What happened to “One nation under God”? We are now numerous “politicaldoms under who knows what”.
No wonder our society is in such a sad condition.
A Sentencing Commission survey Federal judges found that 62% of them felt that the mandatory minimum sentences for CP crimes were excessive. And that was nearly a decade ago! But Congress has been reluctant to touch it.
I do appreciate the judge’s acknowledgement that registry is a life sentence. Such a simple acknowledgement during sentencing would have spared a certain California judge his recall election.
All depends on the CP charge of conviction.
Something like this is ridiculous. How would these rules apply if the couple was married?
If however your CP charge is for grownups engaging in sexual acts with prepubescents, they should throw the book.