Appellate Law

CA1: Fifteen year mandatory minimum for guy in wheelchair trying to produce child pr0n okay

By S. COTUS

US v. Polk, No. 07-2425 asks the question of whether the ?ifteen-year mandatory minimum term of imprisonment under 18 U.S.C. § 2251(e)? violates the Eighth.  Selya writes the opinion so you can tell where it is going.  This is a pretty typical ?seduction of cop posing as teenage girl? case.  The strange wrinkle is that the defendant was in a wheelchair and argues that he is harmless.  He was sentenced above the mandatory minimum, but the First explains that ?The possibility exists that, but for the mandatory minimum, the GSR would have been more modest and the defendant's sentence would, accordingly, have been less.?

Selya says that ?stern? penalties are acceptable.  Then Selya does some non-judging and holds that ?Given the deference that courts owe to legislative judgments in the area of crime and punishment, it is predictable that most efforts to demonstrate gross disproportionality will fail.?  Whatever.  Anyway, Selya says that the sentence isn?t grossly disproportionate because, ?In Congress's view ? and that is the view that matters most ? the production of child pornography is a profoundly serious matter. That is a reasonable value judgment, well within Congress's prerogative to make. [United States v. Saccoccia, 58 F.3d 754, 788 (1st Cir. 1995]. Therefore, Congress was entitled to punish the offense heavily.?  Moreover, the fact that it was an ?attempt? doesn?t matter.

Full post as published by Appellate Law and Practice on October 30, 2008 (boomark / email).