The Federal Sentencing Regime

Feb 5, 2013 by


The United States has the highest prison population in the world. In 2007, the population was nearly 2.3 million people, nearly one quarter of the world prison population. Russia and China combine for the next quarter. Western European countries have prison populations which are roughly 10% of the rate in the United States. China, the country often believed to have the harshest criminal justice system, has a prison population rate one fifth that of the United States.1

One of the reasons for this high prison population is that Congress has passed numerous criminal statutes requiring judges to impose mandatory sentences. These statutes strip judges of any discretion in imposing sentences that meet the crime. The best known are mandatory minimum drug sentences; in cases where defendants do not cooperate with the government, courts must impose mandatory ten year sentences for being part of relatively small scale drug conspiracies, regardless of the individual’s role in the offense.2 3
This article will deal with a different type of case, child pornography, that requires Federal Courts to often impose mandatory five year prison sentences.4 Oddly, the statute mandates a five year sentence for “receipt” of child pornography, while permitting a defendant charged only with “possession” to receive a non-jail sentence.5 It is hard to understand the actual differences in the criminal conduct between “receipt” and “possession”.

A recent case of mine is illustrative of the difficulties inherent in these cases. The defendant Pietro Polizzi was charged with “Receipt and “Possession” of Child Pornography pursuant to Title 18 USC §§ 2252(a)(2) and (4). Mr. Polizzi’s case was wheeled out to Judge Jack B. Weinstein of the Eastern District of New York, a compassionate and brilliant jurist, who did everything in his power to try to do justice in this case. Even so, he failed. The history of this case provides insight into the harm caused by mandatory minimum sentences. They create a judiciary powerless to do justice and obliged to act as a rubber stamp for a Congress that has passed laws designed to usurp judicial discretion in favor of unnecessarily harsh mandatory sentences.

Mr. Polizzi was 53 when he was arrested in January of 2006. He had immigrated to the United States from Sicily in his early teens. He spoke no English at the time. With only a few years of schooling, he opened a pizza restaurant in Brooklyn and over the next 35 years turned it into a successful business. Polizzi married the girl next door, had five college educated sons and bought a nice home near his restaurant.6 At his trial in September of 2007, Mr. Polizzi testified, without contradiction, that as a child in Sicily he was severely sexually abused. Reliving the events of  that abuse on the witness stand was clearly traumatic for him. He testified that when he viewed the photographs, it reminded him of being raped and molested as a child and made him want to do something to protect those children. He further testified that he did not contact the authorities because police officers in Sicily had raped him, and he did not have faith that police officers here would be any different. He believed that if the online images were illegal, they would not have been available on the Internet. United States v. Polizzi, 549 F. Supp. 2d 308(E.D.N.Y, 2008 ) at 332.

Mr. Polizzi, had never told his familyabout what had happened to him in Sicily. at 333. Although, in many ways Mr. Polizzi achieved the American dream, he suffered psychological scars as a result of his traumatic childhood. at 325 Psychologists testified at the trial that he suffered from Post Traumatic Stress Disorder and Obsessive Compulsive Disorder. at 333

There was not one scintilla of evidence that Mr. Polizzi committed another crime, went to chat rooms, sent pornographic photos to anyone, produced or distributed any of the images or committed any other crimes. at 322. Still, the government rejected any plea agreement that would have allowed Mr. Polizzi to plead to the “possession” charge, although they never explained that decision. Thus,the Court had no discretion to sentence Mr. Polizzi to less than five years.

Child pornography cases rarely go to trial. The defendant used an insanity defense; that is, that Polizzi suffered from a severe mental disease or defect.7 The defense sought a charge that the defendant “was unable to appreciate the nature and quality or the wrongfulness of his acts. The defense wanted the “act” to be described as the downloading of the material, not, as the government argued, the wrongfulness of the images themselves. United States v. Polizzi, 545 F. Supp. 2d 270 at 275 (E.D.N.Y , 2008) The Court declined the defense request to charge, instead charging “wrongfulness” as “unlawfulness.” at 277. After three days of deliberations, the jury rejected the insanity defense and reached a verdict of guilty.

In his written opinion, the judge wrote that his charge was correct, stating that the “jury could appropriately have concluded that Polizzi did appreciate the inherent wrongfuless of child pornography, and once informed of the law, could appreciate that downloading it was illegal.” at 278. It is unclear whether the jury’s verdict would have made sense if they did not believe that Mr. Polizzi understood that it was wrong to download the material. A charge more consistent with the defense position, may have brought about a different result. If Judge Weinstein is correct, to be acquitted by reason of mental illness or defect, Mr. Polizzi would have had to believe that the images themselves were not wrong, not (as argued by the defense) that the downloading of the material was wrong. The Government argued that Mr. Polizzi knew that the images were wrong (a point hardly in debate based upon the defendant’s testimony of being a victim of child abuse), while the defense argued that Mr. Polizzi’s mental illness prevented him from understanding that the downloading of the material was wrong.

After the verdict and over the government’s objections, Judge Weinstein asked the jurors if they would have voted differently if they had known of the five year mandatory minimum sentence. Several of the jurors indicated that they would have found the defendant not guilty by reason of insanity if they had known this. United States v. Polizzi, 549 F.
Supp. 2d 308 at 339-341.

At sentencing, Judge Weinstein set aside the twelve “receipt” counts of the verdict in a 178 page decision, sentencing the defendant to one year and one day on the eleven possession counts. United States v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008). The receipt counts required a mandatory minimum sentence of five years.8 Two items of interest to the question of mandatory minimum sentences were addressed. First, the Court found that a five year sentence under the circumstances of this case and this defendant was “cruel,” at 359 but not “unusual.” Judge Weinstein observed that cruel sentences are now par for the course, and therefore defendants do not have Eighth Amendment recourse to a “cruel and unusual punishment” argument. at 360.
Judge Weinstein cited Justice Breyer’s dissent in Hamelin v. Michigan, 501 U.S. 957(1991) which noted that “severe mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.” Judge Weinstein ordered a new trial, stating that he erred when he refused to charge the jury with respect to the mandatory minimum sentence. at 444. The Judge discussed, in some detail, the jury’s historical right to nullify and therefore their need to understand fully the effects and implications of its decision. at 404-444.

Both sides appealed.

The Second Circuit reversed. United States v. Polouizzi, 564 F.3d 142
(2nd Cir., 2009). The Circuit foundthat the defendant had no Sixth Amendment right to an instruction on the mandatory minimum sentence, at 160, although it noted that a District Court, in its discretion, may, in certain circumstances, inform the jury of the consequences of its verdict., at 162. The Court then failed to provide any guidance to the lower court as to when judges can exercise such discretion.9

The Second Circuit also indicated that in the child pornography sphere where a defendant is charged with possession for a single collection of child pornography containing multiple images, the defendant can only be charged with a single count of possession. at 157. The Circuit Court determined that in Polizzi’s case, the number of charges should have been five — four receipt counts and one possession count — and not the 23 in the original indictment. The case was remanded to the District Court to address this concern. The Circuit declined to address the question regarding a proper insanity charge to the jury at 153.

On remand, Judge Weinstein, in a 74 page opinion, granted the defendant a new trial on the ground that the Second Circuit required that the District Court determine what impact the overbroad indictment — the improper inclusion of multiple receipt and possession counts — had on the ultimate fairness of the trial. USA v. Polouizzi, 687 F. Supp. 2d 133 (E.D.N.Y., 2010) Judge Weinstein indicated that the impact of an overbroad indictment may improperly prejudice a jury by suggesting that the defendant committed not one, but several crimes, and he found that the quantitative difference between 23 and five counts had tainted the original trial.

The government appealed, and the Second Circuit again reversed in aterse, one page unpublished opinion. USA v. Polouizzi, 393 Fed. Appx. 784 (2nd Cir. 2010). The Circuit indicated that Judge Weinstein had no basis for granting a new trial under its previous decision and remanded for reinstatement of the jury’s verdict. at 785. The Circuit then wrote, in an obvious slap at Judge Weinstein, that “in the event of a subsequent appeal, the matter will be assigned to this panel.” at 785.

On further remand, Judge Weinstein sentenced the defendant to the statutory mandatory minimum of five years on the receipt counts. In his opinion, after summarizing the defendant’s exemplary personal background, Judge Weinstein described the “federal criminal sentencing regime” as “by far the harshest in the 5 Western world.” USA v. Polouizzi, ———- F. Supp. 2d ———-, 2011 WL 118217 (E.D.N.Y) Judge Weinstein cited newspaper and sociology articles to illustrate this point. A recent article he cited from the Washington Post describes the harsh sentences in this country as parallel to the lynching of Blacks during a different era.10

Mr. Polizzi is now serving a five year sentence. It is frankly impossible to envision how imprisoning Mr. Polizzi serves any legitimate public purpose. Requiring federal district court judges to impose lengthy sentences without discretion does not serve a society that claims that justice is one of its highest principles. It is simply embarrassing that this country, and all it purports to stand for, has the world’s largest prison population. The Polizzi case provides an example of a justice system that makes no sense. It is long past time for our system of justice to begin restoring the judiciary to their rightful place, with the discretion to sentence.

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