Case o' The Week: Bad Loss from Goodwin - Blinkinsop and Child Porn Sentencing

A tough challenge to an in-guideline sentence produces a disappointing opinion that relies on some of the familiar -- and inaccurate -- assumptions underlying child pornography sentencing. United States v. Blinkinsop, __ F.3d __, No. 09-30120, 2010 WL 2105181 (9th Cir. May 27, 2010), decision available here.

Players: Hard-fought appeal by Montana AFPD David Ness. Decision by Judge Goodwin, joined by Judges Hawkins and N. Smith.

Facts: An investigation traced LimeWire child porn images back to Air Force Sgt. Blinkinsop. Id. at *1. A search of his computer revealed familiar guideline adjustments: over 600 images, pre-pubescent, and S&M. Id. After he pleaded guilty to receipt the district court imposed a low-end, 97 month sentence, and thirteen conditions of supervised release. Id.

Issue(s): “Blinkinsop challenges his imprisonment term as being unreasonable, because the district judge allegedly failed to take into account fully his background, potential for rehabilitation, and low recidivism risk.” Id. at *2.

Held: “The district judge considered the § 3553(a) factors and the totality of the circumstances supporting Blinkinsop’s sentence. Blinkinsop’s arguments omit the recognition that the children depicted in the pornography that he received, viewed, stored and transmitted are the real victims of his crime and that time is required for the sex-offender treatment during incarceration that Blinkinsop needs for his child-pornography addiction. In addition to being procedurally correct, Blinkinsop’s imprisonment term, the lowest under the Sentencing Guidelines, is substantively reasonable, because it is well supported by the record and governing law.” Id. at *5.

Of Note: Ninety-seven months for what is really a possession case, for a man with no priors, a young family, and a record of military service? Id. at *3. Part of the rationale for that whopping sentence is the charitable goal of providing Blinkinsop “sex-offender treatment” while in custody. Id. at *2-*3.

Of course, no federal inmate with any sense would ever voluntarily participate in sex-offender “treatment” while in custody: everything said in these sessions can (and will) be used against them in later possible civil commitment proceedings as “sexually dangerous predators.” See United States v. Comstock, – S. Ct. –, 2010 WL 1946729 (May 17, 2010) (upholding extended civil commitment of “sexually dangerous persons” under the Adam Walsh Child Protection and Safety Act).

Faced with this “treatment” trap, federal inmates got wise quick: their informal boycott quickly and essentially shut many of these BOP “treatment” programs down. There may (arguably) be good reasons for an eight-year sentence in Blinkinsop, but anyone who actually litigates child porn cases knows that the opportunity to receive meaningful “treatment” within the BOP ain’t one of them.

For some excellent advice on how to do one’s time on a child porn case (“Say nothing, sign nothing, invoke the Fifth”), see Adam Walsh Act III: It’s Not the Sentence, It’s the Commitment . . . by Sentencing Resource Counsel Amy Baron-Evans and Sara Noonan, available here.

How to Use: Blinkinsop also challenged conditions of supervised release on appeal. He earned reversal of one of those conditions – a blanket ban on “going to” or “loitering near” places primarily used by children. Id. at *6. Because Blinkinsop had kids in school, that condition was remanded for the district court to consider whether he could be allowed to his children’s school events, with probation officer supervision. Id. at *7-*8. The Court also reversed a condition that the Ninth had previously rejected: a flat ban on internet usage. Id. at *9. Remember those limits on supervised release conditions in future child porn cases.

For Further Reading: With all respect, the Blinkinsop opinion and the sentencing decision below embrace an error in logic that underlies the child porn guideline itself: an assumption that the possession of child pornography is a predictor of child molestation. For a thoughtful, thorough, and dispassionate explanation of that error and the injustice it creates, see Jesse P. Basbaum’s Note, Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts, Hastings Law J. Vol. 61, p. 1281, May 2010, available here. (A valuable resource for a child-porn sentencing memorandum).



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Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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