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.”


With the Walsh Act, Congress eliminated a federal district judge’s discretion in setting bail in child pornography cases by imposing mandatory conditions on those child porn defendants released on bail. While the district court still maintains the preliminary discretion in deciding whether to grant bail or impose pretrial detention in these cases, Congress mandated that federal judges impose certain mandatory conditions as terms for bail.

But just as many federal judges across the country have rebelled against recommended sentencing determinations by the U.S. Sentencing Guidelines, federal judges have also placed the mandatory bail conditions of the Walsh Act squarely in their sights. For example, most recently the Senior Judge for the United States District Court in the Eastern District of New York, Jack B. Weinstein, in United States v. Polouizzi followed the lead of a number of other federal courts in holding that the mandatory bail provisions of the Watch Act are unconstitutional for the following reasons:


  • Violates the Eighth Amendment Prohibition Against Excessive Bail: The court made the preliminary observation that “the weight of nisi prius authority is that the Adam Walsh Act is unconstitutional in cases such as the present one, since it requires imposition of electronic monitoring without discretion in all cases falling within the statute’s ambit.” Judge Weinstein found these mandatory “bail conditions … unconstitutionally excessive [because] they impose restraints that are more than necessary to achieve the government’s interest—in this case, preventing risk of flight and of danger to society or children.”
  • Violates the Fifth Amendment Prohibition Against a Person Being Denied Liberty Without Due Process of Law: Judge Weinstein noted that while the concept of “due process” is flexible, it nonetheless requires “procedural protections” when an individual’s liberty interest is at stake.  Judge Weinstein found that an individual’s “valid liberty interest in freedom of movement … is arbitrarily and substantially reduced by the Adam Walsh Act. The right to travel from one place to another free of hindrances is a well established aspect of constitutionally protected private freedom.” The judge added that “a curfew, by its definition, restricts the ability of the defendant to move about in a public area during periods of time. The condition of a mandatory curfew with an associated electronic monitoring bracelet imposed pursuant to the Adam Walsh Act substantially constrains freedom-of-movement liberty … Electronic monitoring devices that inhibit straying beyond spatial home property limits, like those used to restrain pet dogs, are intrusive.”


Judge Weinstein, like most other judges, stopped short of concluding that the Walsh Act violates the constitutional doctrine of “separation of powers” as Judge Leslie G. Foschio did in December 2006 in the case of United States v. Crowell—a decision emanating from the Western District of New York and decided just six months after the Walsh Act was signed into law by President Bush. Judge Weinstein rejected Judge Foschio’s position by saying that the “violation of separation of powers theory does not provide a sufficient basis for declaring the Adam Walsh Act unconstitutional. Congress has a major role in regulating bail. The Bail Reform Act of 1984, for example, was protective of a defendant’s rights against imposition of excessive bail.”
But clearly the constitutional friction between the federal courts and Congress over the issue of child pornography, whether it relates to degree of sentencing or the amount of bail, is escalating. And for good reason, the courts are intended to be independent guardians of constitutional liberties while Congress is a political machine whose primary goal is to enact legislation that (1) will ensure their reelection and (2) promote political partisanship. As we pointed out in a blog earlier this year:
“Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. The following is a list of many of the laws enacted by Congress over the


last three decades regarding child pornography-related offenses:

  • Protection of Children Against Exploitation Act of 1978;
  • Child Protection Act of 1984;
  • Child Sexual Abuse and Pornography Act of 1986;
  • Child Abuse Victims’ Rights Act of 1986;
  • Child Protection Restoration and Penalties Enhancement Act of 1990;
  • Sex Crimes Against Children Prevention Act of 1995;
  • Protection of Children from Sexual Predators Act of 1998;
  • Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
  • PROTECT Our Children Act of 2008;
  • Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
  • Keep the Internet Devoid of Sexual Predators Act of 2008; and
  • Effective Child Pornography Prosecution Act of 2008.


“This endless stream of legislation has contributed to an increasing, and more open, judicial chaos in the specific area of child pornography sentencing.”


The sentencing chaos has now spilled over into the area of bail. This is evidenced by the practice of judges in

the Southern District of Texas, which encompasses Harris County, denying bail in virtually every child pornography case brought in this district. But with other federal courts across the country expressing their constitutional dissatisfaction with the mandatory bail conditions of the Walsh Act, the “no-bail” practice in the Southern District will inevitably come under increasing attack by criminal defense attorneys.

We believe that possession of child pornography under any circumstances is offensive and society has every right to criminalize this conduct, which is ultimately derived from extreme child abuse.  Yes, the images are disgusting and violate some of our most cherish moral values, but are those who view these terrible images in the privacy of their homes violent monsters, incapable of redemption.  Wouldn’t theses individuals, who simply possess child pornography without acting-out or abusing children, be better punished by court ordered counseling and other therapies intended to mend their obviously damaged psyches that obviously fuel this demented obsession?  Or, is it better to do what comes easiest to most of us, lock them away forever and forget they exist.


It has become patently obvious that Congress uses these types of crimes as easy targets upon which to legislate to create political advantage, much like the Witch Hunts of former times.  That’s why we support the growing movement in the federal courts to bring some sanity to the sentencing and bail practices flowing from the Walsh Act.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair