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SDNY Magistrate Finds Non-Discretionary Adam Walsh Act Bail Conditions Unconstitutional in Child Pornography Possession Case

As the world awaits the decision on the government?s bail revocation motion in the Madoff case [update: 12:16 p.m. it is just being reported that he will remain free], another SDNY magistrate issued a notable bail decision recently in a case that involves a similar collision between public opinion and the Bail Reform Act?s principles favoring the least restrictive form of pretrial release.  In United States v. Arzberger, 08 cr. 894 (AKH/JCF), 2008 WL 5453739 (S.D.N.Y. December 31, 2008), the defendant, who faced charges of receipt and possession of child pornography, opposed the government?s motion to modify the terms of his bail by adding certain non-discretionary conditions set forth in the Adam Walsh Amendments to the Bail Reform Act, including a curfew, electronic monitoring, a direction to avoid contact with any potential witnesses and prohibition from any dangerous weapon.  Arzberger challenged the provisions as unconstitutional under the Fifth and Eighth Amendments, both facially and as applied, and that they violated the Separation of Powers Doctrine.

In a lengthy decision, Magistrate Judge Francis first reviewed the sparse precedents on the issue (three of the four of which had found the Amendments unconstitutional), and then analyzed each proposed condition separately under the Due Process clause.  He concludes: ?The Adam Walsh Amendments are unconstitutional on their face to the extent that they would impose conditions that infringe protected liberty interests without providing the accused with an individualized assessment of the need for such conditions.?  The court rejected the defendant?s facial challenge under the Eighth Amendment, held the as-applied challenge under the Eighth Amendment was premature, and also held that the Adam Walsh Amendments do not violate the Separation of Powers Doctrine.

It is heartening to see reason prevail in an area of the criminal law that one Sixth Circuit judge wrote in a dissenting opinion is approaching the hysteria of the Salem Witch trials.  In United States v. Paull, No.07-3482 (6th Cir. January 9, 2009), as highlighted on Professor?s Berman?s website here, Judge Merritt filed an opinion that dissents from the court?s decision to affirm a 17.5 year sentence in a child pornography possession case.  Judge Merritt begins:

As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography.  Our ?social revulsion? against these ?misfits? downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing.  In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts. 

Full post as published by New York Federal Criminal Practice on January 12, 2009 (boomark / email).