Growing Practice of “No Bond” and Unreasonably Harsh Sentences for Some Child Sex Crimes Sparks Judicial Concern
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In July 2006 former President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act, the Sex Offender Registration and Notification Act (“SORNA”), received the most media attention because it expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements.
One of the lesser publicized impacts of the Walsh Act has been the restrictions on bail and the increased sentencing disparity for defendants charged with simple possession of computerized child pornography. The latter problem was succinctly described by Judge Merritt’s dissent in a January 9, 2009 decision by the Sixth Circuit Court of Appeals, United States v. Paull, in which he said: “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… in the federal courts. Some trial and federal judges are sending these mentally ill defendants like Paull to federal prison on very long sentences. But the 17-1/2 year sentence for Paull may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type I diabetes with many complications. How could this sentence be ‘not greater than necessary’ to punish this crime?”
Some federal prosecutors in the Southern District of Texas (“Southern District”) have expanded the “witchcraft” mindset from harsh sentencing practices to the unilateral practice of requesting detention pending trial, no bail, for all defendants charged with possession of child pornography. This creates a situation where child porn defendants in some federal districts are granted bail, albeit with strict conditions, while defendants in the Southern District are denied bail. This harsh policy of pretrial detention for child pornography defendants in the Southern District raises serious constitutional concerns; primarily, that the Eighth Amendment prohibition that “excessive bail shall not be required” is violated. The Supreme Court nearly 60 years ago in Stack v. Boyle held that criminal defendants charged in non-capital cases “shall” be released on bail if they give adequate assurances that they will appear at trial and submit to sentence if convicted.
With the Bail Reform Act of 1984, Congress codified the presumption in favor of pretrial release but also firmly established that bail is not a matter of constitutional right in all cases. Three years later the Supreme Court in United States v. Salerno upheld this congressional mandate by saying that “when Congress has mandated detention on the basis of a compelling interest other than prevention of flight … the Eighth Amendment does not require release on bail.”
Subscribe
