'Marginal
deterrence' discussed
Seventh
Circuit: Statutory maximum is not unreasonable
By
David Ziemer
david.ziemer@wislawjournal.com
June
4, 2007
| What
the court held Case:
U.S. v. Beier, No. 06-3374. Issue:
Is a maximum sentence unreasonable, because the defendant could have engaged in
worse conduct without receiving any more punishment? Holding:
No. The principle
of marginal deterrence is inapplicable, unless the hypothetical, more
aggravated,
conduct also makes it less likely that the defendant will be apprehended for the
crime. |
A May 29
decision from the Seventh Circuit clarifies the concept of “marginal deterrence”
in sentencing.
In
doing so, the court affirmed a maximum, 360-month sentence for producing child
pornography.
James
Beier pleaded guilty in Wisconsin federal court to producing child pornography.
He had produced a number of videotapes and DVDs depicting nude prepubescent boys.
Some showed him fondling the boys’ genitals. He had also had oral sex with
some of the boys, though off-camera.
Judge
John C. Shabaz sentenced him to 360 months, which is both the statutory maximum
and the bottom of the applicable guideline range.
Beier
appealed, but the Seventh Circuit affirmed, in a decision by Judge Richard A.
Posner.
Beier
raised several arguments why the sentence was unreasonable, but the court rejected
them all.
First,
he argued that he had been sexually abused himself as a child, and asserted that
such a history makes a person less able to avoid becoming a child molester.
Turning
the argument around, the court suggested that such a factor may actually warrant
a longer sentence, rather than a shorter one.
The
court wrote, “The more difficult it is for a person to resist a desire for
sexual contact with children, the more likely he is to recidivate, and this is
an argument for a longer prison sentence.”
The
court also noted that, the stronger the impulse to commit a criminal act, the
greater must be the punishment to deter it.
The
court then turned to the marginal deterrence argument. Relying on U.S. v. Newsom,
402 F.3d 780, 785-86 (7th Cir. 2005), Beier argued that, because other child pornographers
engage in worse misconduct than him, such as rape, the principle of marginal deterrence
means that he must receive a sentence less than the maximum.
However,
the court labeled this argument a misunderstanding of the principle.
The
principle works as follows: the punishment for robbery must be lower than that
for murder, because, if robbery were punished as severely as murder, a robber
would have an increased incentive to murder his victim in order to eliminate a
key witness.
The court
explained that the principle was inapplicable in this case, because a child who
is raped is more likely to complain than one who is “merely touched,”
and a rape is also more likely to result in physical evidence.
Thus,
a defendant who engages in the worse conduct cited by Beier — rape —
is also more likely to be apprehended, rather than less likely, whereas the robber
who murders his victim is less likely to be caught than one who does not.
The
court concluded, “reducing the punishment of the child pornographer because
another pornographer might be a worse molester yet could not be sentenced more
heavily for pornography would have no effect other than to increase the amount
of child pornography; and a reduction in punishment that had only that effect
would not reduce an unwarranted disparity in sentencing (emphasis in original).”
Accordingly,
the court affirmed.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
