Judge Weinstein Takes On Child Pornography Laws

New York Times

In his 43-year career as a federal judge, Jack B. Weinstein has come to be identified by his efforts to combat what he calls “the unnecessary cruelty of the law.” His most recent crusade is particularly striking because of the beneficiary: a man who has amassed a vast collection of child pornography.

Judge Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed “no risk to society.”

There is little public sympathy for collectors of child pornography. Yet across the country, an increasing number of federal judges have come to their defense, criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade.

Last week, the United States Court of Appeals for the Second Circuit vacated a 20-year child pornography sentence by ruling that the sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.

Judge Weinstein has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography.

“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.

“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

The man he has spent three years trying to save from a long incarceration is Pietro Polizzi, a married father of five who collected more than 5,000 graphic pictures of children. If prosecuted in a New York State court, he would have faced a maximum prison sentence of four years. Instead, in federal court, he faced a minimum of five years and a recommended sentence of 11 to 14 years. Because of Judge Weinstein’s intervention, he remains free as he awaits another trial.

“I don’t see Judge Weinstein as a judge,” Mr. Polizzi said during an interview as tears rolled down his face. “I see him as my father. He helps people. He doesn’t destroy lives the way the prosecutor has. He’s the one who is going to set me free from the court.”

The child pornography industry has flourished through the Internet, with the number of federal cases growing from fewer than 100 annually to more than 1,600 last year. As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders office, the average sentence was 91 months in 2007, up from 21 months a decade before.

But the tough penalties have chafed at many judges, echoing previous battles over drug cases. Last year, judges imposed sentences below the recommended range in more than half of all child pornography cases.

“What has caused concern in courts across the nation is that we have a lot of relatively law-abiding individuals sitting in the basement downloading the wrong kind of dirty pictures facing not just prison sentences but incredibly long prison sentences,” said Douglas A. Berman, a professor at Moritz College of Law, who studies sentencing issues.

In one recent case, James L. Graham, a United States District Court judge in Ohio, sentenced a 67-year-old man who had suffered a stroke to a single day in prison, along with restrictions on computer use and registration as a sex offender. As part of a deal with prosecutors, the man had pleaded guilty to possession of child pornography, which carries no mandatory sentence.

“When you have to sit there on the bench and look at someone like my stroke victim and say, ‘I have to send this man to prison for six years,’ it just doesn’t feel right,” he explained in an interview. “It’s not right.”

Child advocates like Ernie Allen, the president of the National Center for Missing and Exploited Children, are upset by such thinking. “Real children are harmed in the production of these images,” he said, “and these same children are harmed every time these images are downloaded and viewed.”

At 88, Judge Weinstein is one of the longest serving members of the federal bench. Supporters praise his taking unusual actions in pursuit of his notions of justice, like for a time refusing to handle drug cases out of opposition to mandatory minimums. Critics say that in the process, he disregards the law.

(On Thursday, he made headlines by refusing to dismiss a lawsuit by a public school teacher removed from the classroom for allowing students to use vulgarities during a lesson on H.I.V. He ruled that she appeared to have followed the spirit of a state syllabus that directed that students be encouraged to use sexual terms they understood.)

“Jack is somebody who will step out and do what he thinks is right and take his chances of being overturned by an appeals court,” said John S. Martin, who cited his disagreement with mandatory sentences when he retired from the federal bench in Manhattan. “He sees the injustice in these things and he tries to do something about it.”

Both sides point to his efforts in the Polizzi case as quintessential Weinstein.

In 2005, Mr. Polizzi signed up for a child pornography Web site. He began obsessively stockpiling thousands of images, mostly of prepubescent girls. When F.B.I. agents arrived with a search warrant, he led them to the two-story garage where he kept his collection behind locked doors, saying, “The pictures of the children are upstairs.”

Child pornography cases almost always end with guilty pleas. But when the case was assigned to Judge Weinstein, Mr. Polizzi’s lawyer recommended that he go to trial.

The lawyer used an insanity defense, claiming Mr. Polizzi had been repeatedly raped as a child and had collected the pictures not for sexual gratification, but in hopes of finding evidence of his own abuse — claims the prosecution dismissed as implausible. When the first of the images were shown in court, Mr. Polizzi collapsed and was taken to a hospital.

The jury was given the standard instruction not to consider possible punishment during deliberations. After three days, on Oct. 5, 2007, Mr. Polizzi was convicted of all 12 counts of receipt of child pornography and 11 counts of possession. Then Judge Weinstein broke from the script with a question almost never posed in court: If the jurors had known about the minimum prison sentence, would they have voted to convict?

Five jurors spoke up against imprisonment. Two said they would have changed their votes. Judge Weinstein tossed out the guilty verdict on the more serious receipt counts and ordered a new trial. He sentenced Mr. Polizzi to a year in prison for the possession counts, which Mr. Polizzi has served.

Judge Weinstein declared that Mr. Polizzi had a constitutional right to have a jury know the punishment that would accompany a guilty verdict, a right he said he had violated. He pledged to inform the next jury of the mandatory minimum sentence. That idea, floated by a federal judge in Manhattan several years earlier in another child pornography case but rejected on appeal, would give jurors the option of refusing to convict if the punishment seemed disproportionate, as several jurors had indicated they believed it was in Mr. Polizzi’s case.

“That was quite an unusual way of handling it,” said Amy Baron-Evans, the national sentencing resource counsel for the federal public defenders’ office. “Usually the judges are just stuck with the mandatory minimum.”

The Court of Appeals last year overruled Judge Weinstein’s order of a new trial, but left unresolved whether it was permissible to tell the jury about the punishment. The case was remanded, and Judge Weinstein, after consulting with other District Court judges, again ordered a new trial, though this time on different grounds. And again he pledged to inform the jury of the mandatory minimum sentences. That decision is under appeal.

In the meantime, the cases keep coming.

On Wednesday, Judge Weinstein dealt with a man who had pleaded guilty to receipt of child pornography. He imposed the mandatory five-year minimum prison term, though unhappily.

“This is an unnecessarily harsh and cruel sentence under the circumstances,” he said. “The court has no alternative under the statute. This defendant requires treatment and a stable life outside of prison. Prison will only harm him and will do nothing to protect society, since he does not constitute a risk of crime or any acting out towards children.”

“I’m sorry,” he added, “there is nothing I can do in this case.”

Worst-Case Thinking

"Our society no longer has the ability to calculate probabilities. Risk assessment is devalued. "

by Bruce Schneier

At a security conference recently, the moderator asked the panel of distinguished cybersecurity leaders what their nightmare scenario was. The answers were the predictable array of large-scale attacks: against our communications infrastructure, against the power grid, against the financial system, in combination with a physical attack.

I didn't get to give my answer until the afternoon, which was: "My nightmare scenario is that people keep talking about their nightmare scenarios."

There's a certain blindness that comes from worst-case thinking. An extension of the precautionary principle, it involves imagining the worst possible outcome and then acting as if it were a certainty. It substitutes imagination for thinking, speculation for risk analysis and fear for reason. It fosters powerlessness and vulnerability and magnifies social paralysis. And it makes us more vulnerable to the effects of terrorism.

Worst-case thinking means generally bad decision making for several reasons. First, it's only half of the cost-benefit equation. Every decision has costs and benefits, risks and rewards. By speculating about what can possibly go wrong, and then acting as if that is likely to happen, worst-case thinking focuses only on the extreme but improbable risks and does a poor job at assessing outcomes.

Second, it's based on flawed logic. It begs the question by assuming that a proponent of an action must prove that the nightmare scenario is impossible.

Third, it can be used to support any position or its opposite. If we build a nuclear power plant, it could melt down. If we don't build it, we will run short of power and society will collapse into anarchy. If we allow flights near Iceland's volcanic ash, planes will crash and people will die. If we don't, organs won't arrive in time for transplant operations and people will die. If we don't invade Iraq, Saddam Hussein might use the nuclear weapons he might have. If we do, we might destabilize the Middle East, leading to widespread violence and death.

Of course, not all fears are equal. Those that we tend to exaggerate are more easily justified by worst-case thinking. So terrorism fears trump privacy fears, and almost everything else; technology is hard to understand and therefore scary; nuclear weapons are worse than conventional weapons; our children need to be protected at all costs; and annihilating the planet is bad. Basically, any fear that would make a good movie plot is amenable to worst-case thinking.

Fourth and finally, worst-case thinking validates ignorance. Instead of focusing on what we know, it focuses on what we don't know -- and what we can imagine.

Remember Defense Secretary Donald Rumsfeld's quote? "Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know." And this: "the absence of evidence is not evidence of absence." Ignorance isn't a cause for doubt; when you can fill that ignorance with imagination, it can be a call to action.

Even worse, it can lead to hasty and dangerous acts. You can't wait for a smoking gun, so you act as if the gun is about to go off. Rather than making us safer, worst-case thinking has the potential to cause dangerous escalation.

The new undercurrent in this is that our society no longer has the ability to calculate probabilities. Risk assessment is devalued. Probabilistic thinking is repudiated in favor of "possibilistic thinking": Since we can't know what's likely to go wrong, let's speculate about what can possibly go wrong.

Worst-case thinking leads to bad decisions, bad systems design, and bad security. And we all have direct experience with its effects: airline security and the TSA, which we make fun of when we're not appalled that they're harassing 93-year-old women or keeping first graders off airplanes. You can't be too careful!

Actually, you can. You can refuse to fly because of the possibility of plane crashes. You can lock your children in the house because of the possibility of child predators. You can eschew all contact with people because of the possibility of hurt. Steven Hawking wants to avoid trying to communicate with aliens because they might be hostile; does he want to turn off all the planet's television broadcasts because they're radiating into space? It isn't hard to parody worst-case thinking, and at its extreme it's a psychological condition.

Frank Furedi, a sociology professor at the University of Kent, writes: "Worst-case thinking encourages society to adopt fear as one of the dominant principles around which the public, the government and institutions should organize their life. It institutionalizes insecurity and fosters a mood of confusion and powerlessness. Through popularizing the belief that worst cases are normal, it incites people to feel defenseless and vulnerable to a wide range of future threats."

Even worse, it plays directly into the hands of terrorists, creating a population that is easily terrorized -- even by failed terrorist attacks like the Christmas Day underwear bomber and the Times Square SUV bomber.

When someone is proposing a change, the onus should be on them to justify it over the status quo. But worst case thinking is a way of looking at the world that exaggerates the rare and unusual and gives the rare much more credence than it deserves.

It isn't really a principle; it's a cheap trick to justify what you already believe. It lets lazy or biased people make what seem to be cogent arguments without understanding the whole issue. And when people don't need to refute counterarguments, there's no point in listening to them.

This essay was originally published on CNN.com, although they stripped out all the links.


Security conference:

Precautionary principle:

Iceland volcano affects organ donations:

Areas where we tend to overestimate the threat:

New particle accelerator may annihilate the planet:

Movie plot threats:

Rumsfeld quote:
Possibilistic thinking:

Making fun of the TSA:
The TSA harasses a 93-year-old women:

The TSA keeps a first-grader off airplanes:
Steven Hawking on communicating with aliens:

Frank Furedi on worst-case-thinking:

How we are easily terrorized:

Christmas Day underwear bomber:

Times Square SUV bomber: