Some Judges “get it”, But what can they do about it?

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.