Full opinion text
MEMORANDUM AND ORDER JACK B. WEINSTEIN, Senior District Judge: I.Introduction...............................................................347 II.Facts.....................................................................349 A. Defendant’s Childhood..................................................349 B. Sexual History ........................................................351 C. Instant Offense........................................................351 D. Guilty Plea............................................................353 i. Interpretation of the Statute — 18 U.S.C. § 2252(a)(2)...................353 ii. Pressures on Defendants and Defense Counsel to Plead Guilty...........355 iii. Content of Defendant’s Files ........................................357 iv. Impact on Victims..................................................360 E. Threat................................................................363 i. History...........................................................364 ii. .Industry..........................................................367 iii. Content...........................................................370 iv. Viewers...........................................................372 v. Relationship Between Viewing and Acting; Real and Perceived Harms..........................................................375 F. Effect on Abused Children ..............................................378 i. Abuse of Vicky and Punishment of Primary Abusers....................388 ii. Testimony........................................................389 a. Psychologist...................................................389 b. Parents.......................................................396 c. Punishment of Primary Abusers .................................404 G. Events while Defendant Awaited Sentence ................................406 i. Education, Employment, and Treatment..............................407 ii. Bail Revocation Hearings...........................................407 iii. Mental Health Evaluations..........................................408 a. New York Center for Neuropsychology & Forensic Behavioral Science Report...............................................408 b. Stutman Report................................................409 c. Bureau of Prisons Evaluation....................................411 d. Hamill Report.................................................411 e. Barr Report...................................................412 f. Prentky Report................................................414 g. Sachsenmaier Report...........................................415 h. Leonhard Treatment...........................................416 H. Hearings on Protection of Public and Treatment of Defendant ...............417 i. Probation.........................................................418 ii. Dr. Meg Kaplan ...................................................418 iii. Dr. Susan Sachsenmaier............................................430 iv. Dr. Robert Prentky................................................433 I. Risk Assessment.......................................................445 i. Use of Static-99 ...................................................446 ii. Universe for risk assessment and bias................................449 iii. Coding...........................................................453 iv. Development of Risk Assessment in Sentencing Generally...............460 J. Bureau of Prisons Program For Sex Offenders.............................466 i. Description........................................................466 ii. Trip of Court to Inspect Programs...................................476 III.Law 476 A. Statutory History......................................................476 i. Federal Sentencing Scheme.........................................476 ii. Mandatory Mínimums..............................................478 iii. Child Pornography Legislation and Guidelines.........................478 iv. Judicial Interpretations.............................................480 v. Public Policy Concerns .............................................484 vi. Statute: Distribution of Child Pornography............................486 B. Constitutional Issues ...................................................487 i. Separation of Powers...............................................487 ii. First Amendment Exceptions........................................487 iii. Fourth Amendment................................................487 iv. Irrationality.......................................................487 v. Cruel and Unusual Punishment......................................490 a. Proportionality.................................................491 b. Excessive Child Pornography Incarceration Terms.................494 c. Juvenile Limits................................................495 d. Science Supporting Immaturity Exception.........................496 1. Studies....................................................496 2. Testimony.................................................502 e. Unconstitutionality as Applied...................................506 IV. Application of Law to Facts .................................................511 V. Conclusion................................................................519 A. Appendix A: Tour of Federal Medical Center Devens.......................520 B. Appendix B: Internet Technologies Providing Access to Child Pornography........................................................524 C. Appendix C: State Statutes on Juvenile Sentencing for Child Pornography........................................................526 D. Appendix D: Bureau of Prisons Sex Offender Programs.....................566 E. Appendix E: Memorandum by Chief U.S. Probation Officer..................594 I. Introduction Defendant, C.R., pled guilty to “distribution” of child pornography he had obtained using a computer. Others shared his still and video images through a networking program. Access to the pictures he acquired were alleged to constitute electronic “distribution” of child pornography. See 18 U.S.C. § 2252(a)(2). As indicated in Part II.D.iii, based upon defendant’s allocution, he has not committed acts necessary to establish the crime charged. The guilty plea would not have been accepted if not for the strong urging of defendant and his counsel. Defendant was nineteen years old at the time of the offense. He started using computers to view this material when he was fifteen. C.R. is subject to a statutory minimum prison sentence of five-years, with a maximum of twenty years, and a Guidelines range of 68-78 months. There also must be imposed what may amount to lifetime control on defendant as a sex offender. See 42 U.S.C. §§ 16911, 16915(a)(1) (fifteen years for lowest risk federal offenders); § 16915(b) (possibility of early termination for federal offenders after ten years); N.Y. Corr. Law § 168-h(l) (twenty years for lowest risk offender). As applied to this defendant and this case, the statutory minimum five-year sentence of imprisonment is unconstitutional. It is cruel and unusual. See Part III.B.V, infra. The Guidelines sentence is excessive. Imposed is a thirty-month sentence for intensive medical treatment in prison. This will be followed by long-term post-prison curative therapy and strict control for many years under supervised release by the court’s probation service. See Part IV, infra. Society will be best protected by this regimen rather than by a longer term of imprisonment; C.R. should be prepared to assume a useful law-abiding life rather than one of a broken and dangerous, ex-prisoner deviant. Were it not for Congress’s strongly expressed preference for incarceration in these cases, the court would have imposed a long-term of supervised release with medical treatment outside of prison. Further general or specific deterrence is not required. The adult who abused the child in one of the abhorrent known victim child pornography video series found on defendant’s computer was sentenced to fifty years in prison. Another adult who stalked and harassed this child with pictures of her abuse was sentenced to twenty years in prison. See Part II.F.ii.e, infra. This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.? Widely shown video images are involved. While “[a]ny social problem that exists at the intersection of adolescence, sex, technology, and criminal law compels strong reactions from all sides ... it often results in sensationalism and oversimplification of complex and multifaceted issues making it more difficult to discuss the problem rationally and productively.” Mary G. Leary, Sexting or Self-Produced Child Pornography? The Dialogue Continues— Structured Prosecutorial Discretion within a Multidisciplinary Response. 17 Va. J. Soc. Pol’y. & L. 486, 487-88 (2010). Sexual development is complex and subtle. It varies widely with the individual. The law will cause serious and unnecessary harm to adolescent defendants by applying a mechanical and unnecessarily harsh sentencing scheme to address the broad range of culpability and circumstances involved in child pornography crimes. Part II of this memorandum discusses the facts of the case, including an overview of C.R.’s childhood, his sexual history, the instant offense, and his guilty plea. The history of child pornography is briefly described. An explanation of the child pornography industry, its content, and its viewers provides context for the instant offense. Following is an examination of the real and perceived relationship between viewing such material and acting out by abusing children physically. The harm in defendant’s use of child pornography flies is outlined in Part II.F, with a discussion of the punishment of those who create or use videos to harass the victim detailed in Part II.F. i — ii. Particular attention is given to the harms caused to a known victim widely shown in the internet “Vicky Series.” Described is the distress of “Vicky,” her mother, and step-father; the criminal prosecution and sentence of the perpetrator of her abuse, her biological father; and the conviction and sentence of an individual who stalked “Vicky” over the internet. Aso covered in Part II are C.R.’s activities while awaiting sentence, including his education, employment, and mental health treatment; bond revocation hearings; and the extensive evaluations he has undergone. See Part II.G, infra. Applicable law and its premises are discussed in Part III. Statutory history is explained in subdivision A, covering the federal sentencing scheme, mandatory minimum prison terms, child pornography legislation, and relevant sentencing guidelines. Explicated are judicial interpretations and public policy concerns. Part III.A.vi covers the specific statute at issue, 18 U.S.C. § 2252(a)(2), distribution of child pornography. Discussed in Part III.B are the constitutional arguments questioning the imposition of a uniformly applied five-year mandatory minimum sentence of imprisonment. It begins with consideration of separation of powers. Also explored are First Amendment exceptions for child pornography, Fourth Amendment concerns, and lack of a rational basis for a five-year mandatory minimum sentence for non-commercial distribution of child pornography. These approaches to the constitutional issues are rejected as grounds for finding that the mandatory statutory minimum violates the Constitution. See Part III.Bi-iv. The next section, Part IILB.v, scrutinizes the Eighth Amendment’s proscription against “cruel and unusual punishments.” The constitutional “cruel and unusual” bar requires that the mandatory five-year statutory minimum not be applied in the present case. Set out in Part IV, Application of Facts to Law, are the guidelines calculation and the reasons for a non-guideline sentence. Various sentencing options are summarized including: (1) prison for many years, (2) a thirty-month prison term with full treatment and completion of a program for control of sex offenders at The Federal Medical Center Devens prison (“FMC Devens”), and continued long-term strict control and treatment outside of prison; and (3) a non-incarceratory probation sentence with outpatient mental health and sex offender treatment. Adopted in the Conclusion, Part V, is the intermediate position, (2). This solution provides the fullest protection of the public as well as the rehabilitation of the defendant. Young C.R. is far from perfect — a characteristic shared with many. But this is not a reason for destroying him in prison. To better reflect the nuances in relevant sentencing vectors and their interaction in a case such as the present one, there has been set out below at greater length than is usual in a sentencing memorandum large portions of the transcripts of testimony and other material informing the court’s reasoning. There were extensive evidentiary hearings with testimony from a dozen expert witnesses in the fields of child sexual abuse; online child pornography; risk assessment; treatment of sex offenders; and neuropsychology and adolescent brain development. The court visited FMC Devens to observe its program of psychological treatment of sex offenders. See Appendix A and D. Received in evidence was a comprehensive record of the defendant’s background and his mental health. The crimes of receiving, viewing, and distributing child pornography and the harms created were explored. Investigated was the nature of adolescent brain development and its impact on decision making, judgment, and impulsivity. Defendant’s potential risk of recidivism and the methods of predicting dangers are outlined in Part II.I, infra. II. Facts A. Defendant’s Childhood The defendant, now twenty-one, was born the only child to parents who separated when he was under one year old. Shortly thereafter they were divorced under bitter circumstances. Presentence Investigation Report (“PSR”) ¶¶ 44, 46. His biological mother, formerly a successful fashion designer, became a cocaine addict and exotic dancer. Id. at ¶¶44, 46, 49. She lost custody of defendant after a confrontation with local police and a Child Protective Services investigation. Id. at ¶ 46. C.R. had little to no contact with his biological mother throughout his early youth; he recalls only a single encounter with her when he was eight, followed by a handful of visits and unfulfilled promises to see him during his early teenage years. Id. at ¶¶ 49, 71. After his parents divorced, C.R.’s thirty-two year old father and his father’s twenty-two year old girlfriend established a joint residence. Id. at ¶ 51. The couple married after living together for three years; they had one child, a daughter. Id. C.R. and his young stepmother developed a close relationship. Id. at ¶ 51. She was the primary caregiver and involved parent. Id. When C.R. was fifteen, he discovered her in bed with a male family friend. Id. at ¶ 52. The extramarital affair continued, and the marriage ended under nasty tensions. Id. The defendant’s half-sister and stepmother then moved out. See id. at ¶ 51. C.R. continued to regard his stepmother as “the most important and nurturing person in his life.” Id. at ¶ 71. Except for one failed semester at college and a short stint with his biological mother, the defendant always has lived with his father and this parent’s female cohabitating companion of the moment. See id. at ¶ 53, 54. Following indictment, C.R. was ordered to comply with restricted home confinement rules. He continues to live in his father’s apartment, where this parent shares a bed with a twenty-four-year-old woman. Id. at 54. C.R. sleeps in a curtained-off portion of the dining room. Id. The defendant has worked part-time since his middle teens, most recently behind the counter of a donut shop. Id. at ¶¶ 91-97. He has never been financially independent. Id. at ¶ 91; see id. at ¶ 54. Intermittently he has attended college. Id. at ¶ 85-87; see also Part II.G.i, infra. Since court supervision began his college studies have been steady and satisfactory, and he has been receiving drug and sex offender therapy. Now twenty-one years old, the defendant was evaluated shortly after his arrest, when he was nineteen, as “grossly naive.” Id. at ¶ 70. Expert mental health evaluations confirmed his continued neurological, psychiatric, and emotional immaturity. See infra Part II.G.iii. Physically, he is slight, with the facial appearance of someone in his mid-teens. At age fifteen — about the time his father and stepmother’s connubial relationship was severed — C.R. began smoking marijuana and drinking alcohol. One year later a friend introduced him to child pornography on the Internet, and he began watching the material with male and female peers. See PSR at ¶¶ 26, 68, 79, 80. Drug use increased markedly over the next few years. See id. at ¶¶ 79-84. By age eighteen, C.R. smoked marijuana “most waking hours.” PSR at ¶ 79. In addition, he started abusing prescription medications, including antidepressants, sleeping pills, and narcotic painkillers; and he ingested Ecstasy, LSD, and hallucinogenic mushrooms. Id. at ¶ 81. For three years before he started looking at child pornography on his computer, C.R. spent hours each week downloading and viewing adult pornography, which he encountered for the first time when he saw it online at age thirteen. Id. at ¶ 68. Over the next three years the defendant collected more than a thousand child pornographic still images and over a hundred such videos, in addition to substantial adult pornography. See id. at ¶ 68. Prepubescent and pubescent boys and girls mainly between the ages of ten and seventeen were shown engaged in sexually explicit activities with each other and with adult males. See id. at ¶¶ 9,16, 68. C.R. describes viewing child pornography out of curiosity and looking at the images and videos of prepubescents for purposes of sexual gratification. Id. at ¶ 68. His downloading of child pornography appears to have occurred only when he was high on drugs. Id. at ¶ 26. B. Sexual History The defendant is unmarried, has no children, is not dating, and has never maintained a long-term romantic association. See id. at ¶ 57. His longest intimate relationship lasted for three months, with a girlfriend of his own age. See id. at ¶ 68. Defendant’s first overt sexual encounter involved physical contact with his paternal half-sister — then eight years old — when he was fifteen. Id. at ¶ 11; see id. at ¶ 68. The incident occurred during a family vacation and involved touching of sexual organs. Id. at ¶ 11; see id. at ¶ 68. The father — with custody of his son and a temporary visit from his daughter — had placed the children in the same bed in a hotel room. Id. at ¶ 11. Revealed during plea negotiations were two other incidents between these two children. One involved mutual touching when C.R. was sixteen and his half-sister was nine. Id. at ¶¶ 11. The other entailed oral-genital contact when she was eleven; he was eighteen and home from college. See id. at 14. She is now thirteen years old and he is twenty-one. See id. at ¶ 51. The defendant’s half-sister now resides with her mother, the defendant’s former stepmother. Id. at ¶ 51. At this parent’s request, a protective order barring contact between the half-siblings was entered by New York State Family Court. See id. at ¶¶ 21, 61. No criminal charges were based upon the incidents. The mother of the half-sister “had no prior impression of any possible abuse of [her daughter], and she did not think that the defendant had any sexual or emotional problems” until they were revealed during the present criminal prosecution. Id. at ¶ 20. C.R. describes having limited sexual encounters with peer males from the time he was sixteen through nineteen years. Id. at ¶ 68. Between ages seventeen and eighteen, he interacted in a sexual manner with adults online, on occasion using a web camera. Id. At age nineteen, he had face-to-face sexual interactions with a forty-year-old man after meeting him online. Id. at ¶ 9. The defendant denies meeting with children online, in a sexual manner or otherwise. Id. at ¶ 68. First coitus occurred when the defendant and a peer female were eighteen. Id. A history of engaging in sexual relations with individuals two to four years his junior was revealed. Sexual activity included mutual touching with a fifteen-year-old boy, mutual touching and oral contact with a fifteen-year-old female, and mutual touching with a sixteen-year-old female. Id. These incidents occurred when C.R. was eighteen and nineteen. See id.; ¶ 12. The defendant’s sexual orientation appears still to be developing. It has been evaluated as “fluid” and “malleable.” Id. at ¶¶ 67, 73. C. Instant Offense The offense for which C.R. is being prosecuted occurred when he was living for a short time with his biological mother while attending community college in Queens, New York. See id. at ¶ at 71. She had met a man thirteen years’ her junior at an addiction recovery program; they married. Id. at ¶ 50. The couple had a daughter, now six years old. Id. at ¶ 50. Household dynamics were turbulent. Id. at ¶ 71. The biological mother and C.R. had a difficult relationship, and he never developed a closeness with his stepfather. Id. To avoid confrontations, C.R. would return home from school late at night after everyone was asleep. See id. at ¶ 71, 81. High on marijuana and, occasionally, other drugs, he would download and view child pornography on a computer in the living room where he slept. See id. at ¶¶ 26, 71. During this period an undercover Federal Bureau of Investigation agent selected and transferred a child pornography file from defendant’s computer, at the agent’s initiative, through a peer-to-peer electronic file sharing program named “Gigatribe.” Id. at ¶ 5. It provides for sharing of images and videos among a closed network of “buddies.” See Affidavit of Special FBI Agent Thomas Thompson (“Thompson Aff.”), Docket Entry 1, at ¶¶ 7-9, Jan. 29, 2009 (describing mechanics of Gigatribe and other peer-to-peer programs); see also, e.g., United States v. Griffin, 510 F.3d 354, 356 (2d Cir.2007) (describing mechanics of a similar program called “Ka-Zaa”); United States v. Ladean, No. 09-CR-40021, at *1, 2010 WL 1427523 (D.Mass., Apr. 7, 2010) (describing mechanics of Gigatribe). The systems used by defendant operate as follows: Peer-to-peer file sharing programs, such as Gnutella, Limewire, KaZaa Lite, GigaTribe- and Emule, allow its members to share all types of digital media, including images, movie clips and music, at no cost. Peer-to-peer members must download the compatible software from the Internet to become part of the network; thereafter, they can both post (upload) and obtain (download) digital files from other members of that particular network. Since such peer-to-peer networks have millions of digital files that can readily be shared at any time, its members must conduct a search for a particular type of file. The users must type in a “keyword” to find the specific materials they are seeking. Once the keyword is entered, the shareable contents that contain the specified keyword in their title or description are then displayed. The users must manually select which particular digital files they want to download. GigaTribe has the attribute of being a private, peer-to-peer file sharing community, with new users needing an emailed invitation from a preexisting member to join, and if a user wants to access another user’s files, the transaction takes place privately between the users’ computer systems, without GigaTribe or another third-party database maintaining evidence or a history of their file sharing. See PSR at ¶ 4; see also Appendix C, Internet Technologies Providing Access to Child Pornography, attached. Defendant used Gigatribe for only the thirty day “free” period offered by this service. Id. at ¶ 9. The FBI agent observed a user, later identified as C.R., with the username “Boysuck0416.” C.R. had created a “mini-profile” on the site listing his true gender and date of birth. See PSR at ¶ 5. After joining the defendant’s “buddy list,” the FBI agent viewed and downloaded ten videos and one still image of child pornography from the “added music” folder of the defendant’s computer. Id.; see also Thompson Aff. at ¶ 9. It is this downloading by the FBI from defendants’ files that is the basis for the present prosecution. Based on the information obtained by the FBI, the government executed a search warrant of defendant’s stepfather’s and biological mother’s home. PSR at ¶¶ 5-6. Seized by the agents were two computers used exclusively by defendant. Id. at ¶ 7. C.R. admitted to downloading and viewing child pornography videos on both computers through the Gigatribe website, and to trading videos and digital images via Limewire, another peer-to-peer program. Id. at ¶ 8. C.R. had accessed files from between five and eight fellow Gigatribe users and shared his materials with ten to twenty other users. Id. at ¶ 9. The defendant never paid or charged for any child pornography. Id. at ¶ 26. Nor is there any indication that he used the Internet or any sort of pornography to meet or engage with any child, sexually or otherwise. “There appeared to be no child pornography material involving either very young (under 5 or 6) children, or scenes of bondage, sadism or violence.” Id. at ¶ 16. D. Guilty Plea Defendant does not raise constitutional or other challenges to the procedures by which evidence was obtained against him. On September 16, 2009, the defendant, then twenty years old, appeared before a magistrate judge and pled guilty to Count One of a five-count indictment. Pleading Hr’g Tr. 3, Sept. 16, 2009. Charged in the count was that on November 17, 2008, the defendant distributed a video that contained child pornography in violation of 18 U.S.C. § 2252(a)(2). See Indictment, Docket No. 11. It was explained to defendant that a mandatory minimum five-year sentence was applicable, with a possible supervised release term of life and registration as a sex offender. Hr’g Tr. 16, Sept. 16, 2009. Although the government considered pursuing only possession charges — which would not have triggered the minimum — ■ that option was abandoned after defendant voluntarily revealed his sexual history during plea negotiations. See PSR at ¶ 11. As indicated below, Part II.D.iii, the effect on one victim, “Vicky,” of continued use of pictures of her abuse by many viewers was seriously adverse. See also, e.g., Gov. Exhs. 8-1, 8-2 (effect on other abused children who were known victims). C.R. was one of the many thousands who viewed the Vicky series. Whether a sentence of many years imprisonment for passive viewers will improve the victim’s life is dubious. See generally Aya Gruber, A Distributive Theory of Criminal Law, 52 Wm. of Mary L. Rev 1, 73 (2010). i. Interpretation of the Statute— 18 U.S.C. § 2252(a)(2) Serious questions were raised sua sponte by the court as to whether C.R.’s conduct constituted “distribution” within the meaning of 18 U.S.C. § 2252(a). The statute requires that the defendant “knowingly” “distributes” a “visual depiction of a minor engaged in sexual conduct.” See 18 U.S.C. § 2252(a); Sentencing Hr’g Tr. 9, May 10, 2011. Dictionary definitions establish that “to distribute” is “an active not a passive verb.” Sentencing Hr’g Tr. 9. “To receive,” by contrast, has been interpreted as passive. See Discussion of charges of receiving child pornography in Part II.E.L “[Rjeceipt can be satisfied arguably by opening your computer intending that a visual signal come into the computer. That’s receipt. Because you actually intend to, and actually receive, that’s enough. But with respect to distribution, just opening the computer seems to me not enough.” Id. at 11. “Distribute,” the material element, has two subdivisions. “One, he intends to distribute, he designs, intends; and two, he actually succeeds in distributing a communication, namely the visual depiction;” there must be “a communicator, namely the defendant [ ] and a communicant, somebody who actually received it.” Sentencing Hr’g Tr. 12 (statement of the court). In this case the evidence has established that there was a communication and a communicant who received it. The issues are whether the defendant intended to, and did, communicate. The following colloquy between the court and the defendant shows that for the purposes of the plea, C.R. 1) did not intend to communicate, and 2) did not communicate. Both are required for conviction. COURT: Did you know that this file was being downloaded from your computer? DEFENDANT: At the time that the download was occurring I actually was not home.... COURT: Did you find out later that it had been downloaded? DEFENDANT: Yeah, I did. COURT: When? DEFENDANT: When I came home from school. But I had left my computer on. COURT: Okay. Did you intend that the file be downloaded by this person? DEFENDANT: Your Honor, no, I did not. That site requires you to share with other people, as the agent said, but my intentions were not to distribute but more to just receive. COURT: Did you intend that anybody else, a specific person or general person receive it? DEFENDANT: No, it was not my intention. COURT: There is a serious question here. The government agent downloaded without the defendant knowing or intending that he do so. The defendant says he did not intend to deliver. He did not deliver. The government agent reached into the computer and took the image. The defendant did not intend to deliver, he says. If he is telling the truth, he did not violate the statute. Sentencing Hr’g Tr. 16-17. Congress did not design the statute for purely passive sharing of the kind this defendant [says he] engaged in with his state of mind. Given the seriousness of the consequences, mandatory five-years in federal prison, it cannot be said that Congress designed the statute so that the mere opening of one’s computer, under these circumstances as described by the special agent, would require at least five-years in prison.... The government must prove both that one, the defendant intended some person to receive the image. Here the defendant has said in court that he did not so intend, but that he joined to receive not to transmit. Two, that he actively transmitted the material to at least one person who received it. The situation here is that the defendant says that his computer received [the request for delivery] while he was not home. That is not sufficient under the statute. The material elements of the statute have not been admitted. C.R. stated that he was not home when the file was transmitted from his computer to the undercover government agent’s computer, at the agent’s request. He also said he did not intend to transfer or distribute files to other individuals; the intention was to obtain, not to transmit child pornography.” Sentencing Hr’g Tr. 21-22 (statement of the court). The defendant explained that his goal was to receive child pornography, but in achieving that goal he knew that he had to make his child pornography files available to others. “There is an enormous legal difference between those two mental states [making available and giving or distributing].” Id. at 22. After examining the statute and dictionary definitions of the material term “distribute” the court interprets the statute to require both 1) an active intention to give or transfer a specific visual depiction to another person and 2) active participation in the actual delivery, ii. Pressures on Defendants and Defense Counsel to Plead Guilty Defendants and their counsel face enormous pressures when deciding whether or not to plead guilty to a charge such as the present one. In this case there is the looming threat of a lengthy guidelines sentence should the defendant go to trial; the difficulty of obtaining an acquittal under the less onerous definition of the crime relied upon by the prosecution — -joining a file-sharing group and accepting an “invite” from another individual to be his “buddy,” which allowed that “buddy” to select a child pornography file from defendant’s computer and transfer it to his own computer — and the threat of a superseding indictment with an “advertisement charge” carrying a fifteen year mandatory minimum. All of these factors have a significant influence on the defendant’s decision to plead. In addition, the delay in serving the sentence while appeals are prosecuted would impede defendant’s ability to move on with his life and put the case behind him. At his allocution, C.R. stated “[i]n November of 2008,1 had an image of a minor engaged in sexual activity on my computer. Through a computer program, I permitted another individual to download this image from my computer. This image is the image identified in Count 1 of the indictment.” Pleading Tr. 24, September 16, 2009. C.R. did not express an intention to transmit the files he located to other individuals. C.R. was asked again by the court at the sentencing hearing if what he said in his pleading before a magistrate judge was truthful and voluntary, and if he still wished to plead guilty. See Sent’g Hr’g Tr. 8, May 10, 2011. He did not express any intention to distribute child pornography. Id. at 16. Defendant was told that if his case went to trial, the court would be prepared to inform the jury that the statute carried a mandatory minimum sentence of five years. See Sentencing Hr’g Tr. 24-25, referring to United States v. Polouizzi, 564 F.3d 142, 162 (2d Cir.2009) (“Even assuming arguendo that the district court had discretion to give such an instruction, it was certainly within the trial court’s discretion to decline to instruct the jury on the mandatory minimum sentence.”). He was also informed that any evidence of sexual contact with his half-sister would be subject to an in limine motion and likely would be excluded under Federal Rules of Evidence 403. See Sentencing Hr’g Tr. 30. A Tentative Draft Memorandum and Order had been issued in March, 2011 outlining the proposed sentence. C.R. was aware, thus, that he would be highly likely (even after appeal) to receive a term of incarceration no longer than five-years, whether he pled or went to trial. Id. at 23-24. After the court explained all of these circumstances, C.R., after advice from his counsel, still insisted on pleading guilty. Defense counsel explained the difficult considerations the defendant faced: MR. TALKIN: Supposing that we do go to trial and ... this distribution issue is a legal, technical issue, and certainly we would make a Rule 29 motion and we would hope that the court would grant it.... THE COURT: That’s the way it has to be analyzed at this stage. Are there equitable reasons for accepting a plea to a crime the defendant does not admit he committed? MR. TALKIN: So if we are granted a Rule 29 and there’s an appeal in this case, and it winds its way through the Second Circuit, and the Second Circuit makes a decision where they say ... We’re going to send this back but we are going to send it back to a different court. If that happens ... then we cannot take to the bank that 60-month sentence. THE COURT: Excuse me. The general view in this court in cases like this is that a five-year maximum would apply in this ease based upon consultations I have had with the judges. MR. TALKIN: Judge, we as lawyers cannot rely on that for a second.... [A]ll of us do practice in this courthouse and it’s our belief that there’s a reasonable possibility that other courts in this building would give more than 60 months. And there’s another important consideration here. I believe, and it’s always been the gorilla in the room, that if we decide to go to trial, a superseding indictment can come through with higher mandatory minimums. THE COURT: Which higher mandatory minimum? MR. TALKIN: The 15-year advertising mandatory minimum. Again, we’ll get into a legal battle about whether it’s proper for the government to bring it, we’ll get into a legal battle about whether they can make out the elements of that crime. But, again, taking a step back and being an advocate for nobody else in this world but C.R., it is in his best interest — I, as his attorney, helping him make decisions about his life that are going to affect this young man’s life for the rest of his life, a long life hopefully, it is our opinion that those risks I just detailed to the court are nowhere close to mere taking for a trial that we believe, knowing the evidence, unless the Rule 29 is granted, it’s a very — it’s a high, high, high probability of conviction. So what happens here is, we get into this appellate issue and then we’re relying on the wheel of where this goes, or the Chief Judge, depending on what the procedures are, to decide which judge gets this case and how his life is determined. I don’t think I’m doing my job if I let that happen. Sentencing Hr’g Tr. 26-28. The government agreed with defense counsel. It added, “[t]he government believes the defendant has allocuted to the offense. He knowingly distributed child pornography files to another individual. I think, your Honor, also [there is] another consideration ... it appears from the government’s perspective that this defendant wants to accept responsibility for the offense from a moral standpoint ... that is the perception the government attorney has ... observed over the course of these last two. years. He’s clearly admitted to it on multiple occasions and it seems like something that he wants to do.” Id. at 30. The court has authority to reject a plea under Federal Rule of Criminal Procedure 11. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“There is of course no absolute right to have your plea accepted.... A court may reject a plea in exercise of sound judicial discretion.”). C.R. had three competent and distinguished members of the bar representing him who informed him of his rights and advised him based on what they believed were his best interests. A factual basis for the plea was established because there is substantial evidence to support each element of the crime. The court finds for the present purposes that defendant’s statements are truthful. It does not find that he admitted to committing the crime charged or defined by this court. Yet a jury could reasonably find that defendant was not truthful when he testified that he did not intend to distribute his files to another individual. Balancing the equities in the case, it is appropriate to accept a plea even if the defendant does not concede all material propositions of fact. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (court does not commit constitutional error in accepting a guilty plea despite defendant’s claim of innocence as long as there is a strong factual basis for the plea”); Fed. R.Crim. Pro. 11(b)(3) (Determining the Factual Basis for a Plea). Relying on defendant’s thoroughly considered decision to plead guilty, the strong belief of defense counsel that it is in the defendant’s interest to do so, the prosecution’s observations that the defendant wants to accept responsibility for the offense, the concurrence of his relatives— father and grandmother — who have stood by him, and the defendant’s own high intelligence, the court accepts the plea. It is the defendant’s, not the court’s, decision on this issue that should prevail in the absence of the most unusual circumstances, iii. Content of Defendant’s Files This was not a victimless crime. As revealed by testimony and other information, the child victims suffer not only from the initial physical sexual abuse of their tormentors, but also from the knowledge that their degradation will be repeatedly viewed electronically into near perpetuity by a large audience. While defendant pled guilty only to Count 1 of the indictment, distribution on November 17, 2008 of filename “!NEW! (pthc) 2007 Tara 8 yr — Tara kutje (pedo) (ptsc).mpg” he had other such files on his computers which were available to others. The testimony of Special F.B.I. Agent Thomas Thompson indicates the scope of defendant’s files: Q Did there come a time when you conducted an examination of the defendant’s two computers that were seized during the execution of the search warrant? A Yes. Q What did you discover as a result of your examination? A At least two hundred images containing child pornography and, approximately, one hundred video files containing child pornography. Q What type of child pornography did the defendant have on his two computers? A The majority involved boys between the ages of ten and twelve, engaged in sexual acts and also included some younger boys and girls. Q What sort of sexual acts were portrayed in the videos of child pornography? A Oral sex, anal sex, regular penetration. Q Was one video entitled: PT 101 103 FO 3 CJ dash Gay PTHC, dad pops his eight YO boy’s butt Cherry dash pre-teen Gay kiddie incest dot ADI? A Yes. Q What does that video depict? A Adult male anal penetrating a boy, approximately eight years old. Q Did you send forensic copies of defendant’s computer to the Criminal Division of the Department of Justice? A Yes. Q Why did you do that? A For further analysis. Q Did you send images and video files obtained from the defendant’s computer to anyone else? A. Yes.... NC-MEC, the National Center of Exploited and Missing Children. Q What does NC-MEC do with the images and video files that are sent to them? A They compared them to, at that time, that base of known images, video files containing known victims of child pornography. Q They are able to identify known victims based on the images and videos that you send to them? A Yes. Q Do they ever create a report that identifies the known series on a computer that are seized from a computer? A Yes. Q Do they provide law enforcement contact information for those known victims? A Yes. Q What would you do with the information regarding law enforcement contact? A I would then contact the law enforcement contact to gain additional information about the child pornography series. Q And the known victims? A Yes. Q What is a known victim series? A A known victim series contains at least one child that was sexual abused, either on an image or video tape that has been identified by law enforcement. Q When you say identify, what do you mean by that? A They know it’s a real person. Q Did the defendant’s computer contain images and videos of any know victim series? A Yes., Q How do you know? A From the report that NC-MEC sent back to me. Q How many known victim’s series were found on the defendant’s computer? A At least 14. Q Did NC-MEC send you law enforcement contact information for those 14 known victim series found on the defendant’s computers? A Yes. Q What, if anything, did you do with that information? A I then contacted the law enforcement contacts. Q And what did you do after you contacted them? A I obtained additional information, including the age of the victims, the number of victims involved and the time frame that abuse occurred. Q Did you ask for permission to access other information about the series? A Yes. Q Did NC-MEC also provide you— provide information in more detail, affidavits containing additional information about those 14 victims in the known victim series found on his computers? A Yes. Q Does that NC-MEC report included a detailed description of the child sexual abuse that is depicted in the videos and images found on the defendant’s computers? A Yes, depicts the series, gives detailed description of the child abuse in the series. Q Does it include information about circulation statistics for those particular known victim series? A Yes. Q Can you please explain to the Court what is meant by circulation statistics? A Those statistics are given — based upon law enforcement like myself, we come into contact with the child pornography that we send it down to NC-MEC that would count as one report or one instance of — that series being reported to NC-MEC. Q I’m showing you Government Exhibit One, which has been received into evidence. Q Do you recognize the documents? A Yes. Q What is that? A This is the NC-MEC affidavit that was provided to the government. Q Based upon the information that you collected from NC-MEC and law enforcement contacts, did you create a summary chart for this hearing? A Yes. Q I’m showing you what has been entered into evidence Government Exhibit 2. What is that? A This is a summary chart that I created based on the information that I received from NC-MEC and the law enforcement contacts associated with this series. Q What information does that summary chart include for each known series? A Contains series name, the description of the child abuse in the series, number of known victims in the series, age of victim or victims at the time of abuse, the time frame of the abuse, where the abuse occurred, and how many reports regarding the series were submitted to NC-MEC. Q Can you please read to the Court the time frames of abuse for some of the series listed in Government Exhibit 2? A Sponge Bob or Sponge B occurred in 2003 and [sic] 2009. Q What sort of abuse is depicted in this Sponge B series? A The series contains images of prepubescent boys engaged in a series of sexual acts including oral sex, masturbation and anal penetration of the child. Q That series was found on the defendant’s computer? A Yes. Q Can we please move to the TARA series.... Q What is time frame of abuse for the TARA series? A 2003 to 2008. Q Would you please explain to the Court what sort of sexual abuse if reflected in the TARA series? A The series contains images, videos files of a prepubescent female child engaged in graphic sexual acts with adult offenders, including oral sex, masturbation, foreign object penetration, rectal penetration and anal penetration. Q What is the time frame of abuse depicted in Dalmations? A 2002 to 2004. Q And what sorts of abuse is depicted in Dalmations? A The series contains images and video files on eleven prepubescent male children engaged in sexual acts with each other and male offender, including oral sex and anal penetration. Q What is the age of the youngest victim depicted in this Dalmation series? A Seven. Q And that series was found in the defendant’s computer? A Yes. Q What is the age of youngest victim depicted in the Sponge Bob series? A Six. Q And the age of the youngest victim depicted in the TARA series? A Five. Q .... The time frame of the abuse for the Vicky series? A 2000 to 2001. Q What is the age of the victims at the time of that abuse? A Between ten and eleven. Q And what is depicted in the Vicky series? A It contains still images and video files of prepubescent children engaged in a series of extremely sexual acts, include oral, masturbation, genital penetration and foreign object genital contact. The files contain depictions of bondage. Q What is the age of the youngest victim abused in the Helen series? A Ages of four and eight. Q And what was depicted in the Helen series? A Contains images of prepubescent female children engaged in graphic sexual acts, oral sex, sexual intercourse and anal penetration. Q And that series was also found on the defendant’s computer? A Yes.... Q Special Agent Thompson, of the known victim series that you just described, how many have associated victims impact statements? A Three. Q Which ones were found on file on the defendant’s computer? A Dalmation, TARA and Vicky. Hr’g Tr. 21-28, Nov. 8, 2009. iv. Impact on Victims The impact on victims of viewing their abuse is substantial. See Part ILF., infra. The testimony of the government agent continued as follows: 'Q Could you please explain to the Court what a victim impact statement is? A A victim impact statement, either the victim or a relative of the victim describes the impact that the production of child pornography has impacted their lives. Q Did you contact the law enforcement agencies in the district responsible for coordinating the use of the victim impact statements associated with those three series, Dalmation, TARA and Vicky? A Yes. Q Did you obtain permission to use those victim impact statements? A Yes. Q Are the victims in the TARA and Dalmation series here to testify today? A No. Q Do you have permission to read their statement into the record? A Yes. Q How many victim impact statements are associated with the TARA series? A One. Q I’m showing you what has been admitted into evidence as Government Exhibit 3. Do you see that? A Yes. Q Do you recognize that document? A Yes. Q What is it? A This is the impact statement related to the TARA series given by the victim’s mother. Q Can you please read that victim impact statement into the record. QUESTION: How were you or members of your family affected by this crime? You may continue your statement on an additional sheet of paper if you wish? ANSWER: On behalf of the victim I would like to submit a statement. This child has been a bright light to me, other family members and the community. She is very smart, determined child. Excelling in just about everything she involves herself, school, art, cheer, tennis, and a most obedient child, always wanting to please others. This defendant has participated in exploiting this innocent child into a dark side of life that is totally unacceptable. She is in weekly counseling and has begun to have screaming nightmares sometimes, two, three times a week. Her rights as a human being have been totally violated and I do not know how this will affect her in the long run physically and/or emotionally. Her disclosures to me since December have been very little and she acts like nothing ' is different. But her life has changed. She was uprooted from her elementary school to another one, to protect her from malicious comments, and possibly to a new school system next year. She cannot just go around unescorted for our fear that someone else may know the situation and prey on her and she cannot live in the house she grew up in because people have been watching the house, blogging about the situation and making statements about what should happen to the house and windows were broken when all this first happened. I could go on but I offer these reasons the defendant should not be allowed around children for a long time. QUESTION: Have you or members of your family received counseling or therapy as a result of this crime? Please explain? ANSWER: Yes, the victim, her brother and I have undergone therapy. The victim is still in therapy trying to come to terms and deal with this event that she seemed to compartmentalize and place somewhere deep inside her mind so those close to her wouldn’t see it. Her brother and I, the mother, have just finished therapy to try to help us deal with this event and how it has affected the victim as well as all of us as a family. The secretive nature of this offense and all that transpired in the internet issues went along with it have been hard for her brother and me as her mother to comprehend. THE COURT: Who is the person that violated the child? Who violated the child? THE WITNESS: I believe it was a friend associated with the family. Q Special Agent Thompson how many victims from Dalmation series? A Eleven. Q How many of those victims were depicted on the images you found on the defendant’s computers? A At least three. Q Do you have victim impact statements from one or more — from one or more of those three victims found on the defendant’s computers? A Yes. Q How many victim impact statements do you have? A These are the impact statements of two of the victims in Dalmation series. QUESTION: How old are you? ANSWER: 13. QUESTION: What grade are you in. ANSWER: Eighth grade. QUESTION: Please explain briefly what led you to originally be victimized or assaulted? You could continue on another piece of paper if necessary to answer this or another question. I met him at a fair and the next I met him through my brother. Then we hangout at his house. QUESTION: Explain how your life has been affected by having images of your victimization viewed and downloaded by other internet and knowing this is likely to continue occurring? It makes me feel to be embarrassed and I don’t like people having me on the internet. QUESTION: What sentence would you like the judge to order for someone caught sending, receiving and possessing sexual explicit pictures of you. ANSWER: 30 years in jail. QUESTION: Describe any psychological or emotional long term effects that have occurred and/or you expect will continue to occur as a result of the defendant sending sexually explicit pictures of you? ANSWER: Some people don’t forget. QUESTION: Is there anything else you like the judge to know about how you feel as to what happened to you. ANSWER: Torture. Could you read the victim impact statement 4-2, which has been admitted into evidence and that is the other Dalmation victim impact statement that we have in connection with the files found on the defendant’s computer. “QUESTION: How old are you? ANSWER: 12. QUESTION: What grade are you in? ANSWER: Seven. QUESTION: Please explain briefly what led you to originally be victimized or assaulted.... ANSWER: I met him at the fair and next year we met through a friend. Hangout at his house. He told the other kids to get us involved. QUESTION: Explain how your life has been effected by having images of your victimization viewed and downloaded by other from the internet and from knowing this is likely continue occurring. ANSWER: Makes me feel embarrassed. Don’t really tell anybody. Don’t like to talk to police. Hr’g Tr. 21-37, Oct. 9, 2010. The victim suggested an extreme form of punishment for viewers. Id. Q I’d like to direct your attention to Government’s Exhibit 2. Do you have that in front of you? A Yes. Q Could you please read for the Court the relevant information from Government’s Exhibit 2 including the dates that the series were produced? A Yes, Sponge Bob Series; age of victims at the time of abuse, six to eleven. Timeframe of abuse, 2003 to 2009. Tara Series, age of victim at time of abuse, five to ten. Timeframe of abuse, 2003 to 2009. Eric Series, ages of victims at the time of abuse, four to 12. Timeframe of abuse, 2003 to 2004. Football Series, ages of victims at the time of abuse, eight. Timeframe of abuse, 2004. Vicky Series, as already mentioned, timeframe of abuse, 2000 to 2001. Devon Series, timeframe of abuse, 2000 to 2001. Holy Cross Series, timeframe of abuse 2000 to 2001. The Boy Series, time-frame of abuse, 1999 to 2000. ET Series, timeframe of abuse, 1997 to 2000. Jane N Series, time of abuse, 197 to 1998. Helen Series, timeframe of abuse, 1994 to 1998. Reiz Series, timeframe of abuse, 1989. Q And that first series you had mentioned was? A Sponge Bob was between 2003 and 2009. Q Would it be fair to say that there were other series that have also been produced more recently than the Vicky Series? A Yes. And there is the Harry Series which is not in this report because I got the infotmation back too late.... Q Was the Harry Series also found on this defendant’s computer? A Yes. Q During the course of your investigation in this case, have your learned that the defendant was also distributing child pornography? A Yes, the defendant was advertising, distributing, viewing and possessing child pornography in this case as well he was a hands on offender. Q When you say advertising child pornography, what do you mean by that? A As in my prior testimony, in his Gigatribe, in his full name field he had child pornography search terms. So he was advertising to other users on Gigatribe by putting these search terms in this field that he was sharing child pornography. Q And those search terms are code for child pornography? A Correct. Q During the course of this investigation, have you learned that the defendant has kept sending sexually suggestive pictures to his half-sister? A Correct. Hr’g Tr. 41-43, October 9, 2010. E. Threat. As detailed below, see Section III.A.iii, infra, interest in child pornography as an American legislative problem emerged in the late 1970s. In response to growing public concern, Congress enacted the Protection of Children Against Sexual Exploitation Act of 1977. Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-52, 2256 (2006)). With each passing decade, Congress has increased criminal sanctions, casting a wider and finer net. See generally U.S. Sentencing Comm’n, The History of the Child Pornography Guidelines 6-9 (2009); see also, e.g., Adam Walsh Child Protraction and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (2006) (codified as 42 U.S.C. § 16911 (2006)); PROTECT Act of 2003, Pub.L. No. 108-21, 117 Stat. 650 (2003). Child Pornography Prevention Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009. Little systematic scientific research has been published on the availability of child pornography, nature of the images, motivations of viewers, relationship of viewing to acting out, or impact of the material on children, viewers, and others. See Kerry Sheldon & Dennis Howitt, Sex Offenders and the Internet (2007) (noting lack of reliable data on these issues); Richard Wortley & Stephen Smallbone, U.S. Dep’t of Justice, Office of Comm. Oriented Police Services, Child Pornography on the Internet 12 (2006) [hereinafter DOJ, Child Pornography on the Internet] (same); Max Taylor & Ethel Quayle, Child Pornography: An Internet Crime 27 (2003); Eva J. Klain et ah, ABA Ctr. On Children & the Law, National Center for Missing and Exploited Children, Child Pornography: The Criminal-Justice System Response 2-3 (2001) (same); cf. Note, Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts, 61 Hastings L.J. 1281, (2010) (discussing absence of empirical evidence underpinning sentencing guidelines); Suzanne Ost, Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society, 29 J.L. & Soc’y 436, 443-47 (2002) (discussing lack of objective evidence in media coverage); Neil Malamuth & Mark Huppin, Drawing the Line on Virtual Child Pornography; Bringing the Law in Line with the Research Evidence, 31 N.Y.U. Rev. L. & Soc. Change 773, 789-90 (2007) (discussing absence of objective evidence in treatment by legislature and judiciary). The Court of Appeals for the Second Circuit has recognized a dearth of data on critical issues affecting risks, dangers, and appropriate sentences in these cases. See, e.g., United States v. Dorvee, 604 F.3d 84, 94 (2d Cir.2010) (finding error in sentencing court’s “apparent assumption” about link between possession of child pornography and risk of acting out); United States v. Falso, 544 F.3d 110, 122 (2d Cir.2008) (finding error in district court’s reliance on defendant’s history of sexual abuse of minor and “general proclivities” of child pornographers in finding probable cause to issue a search warrant in child pornography investigation). See also United States v. Stern, 590 F.Supp.2d 945 (N.D.Ohio 2008) (recognizing the difference in culpability between viewing and producing child pornography as well as the wide variation of sentences in child pornography cases). i. History Changing over the years and within societies has been the view of what was malign adult or child pornography; appropriate sexual relationships of gender, age and class; social mores; and criminal or other legal inhibitions. No one in authority now defends on any generally ac