Ask a juror?

Photographer: Joe Raedle/Getty Images

Child-Porn Case Turns Judge Into Sentencing Rebel

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

A federal district court judge is always an unlikely rebel. But Judge James S. Gwin of Cleveland is in open revolt over the prison terms imposed by federal sentencing guidelines. Wednesday, an appeals court gave him its support, upholding a statutory minimum five-year sentence for child pornography when the guidelines were recommending as much as 27 years -- beyond the legal maximum of 20 years. To help reach his decision, Gwin used a tool that he himself invented: he asked the jury members what they thought the sentence should be.

To understand what was at issue in the case, recall that in 2005, the Supreme Court held that the U.S. Sentencing Guidelines, adopted by a commission at the behest of Congress, were unconstitutional when used merely to increase a defendant’s sentence. The landmark decision, which depended on votes from Justices Antonin Scalia and Clarence Thomas, will stand as a testament to the occasional liberalism of these rock-ribbed conservatives. In essence, the court held that any fact that lengthens a defendant’s sentence must be proven to the jury beyond a reasonable doubt.

But the 2005 decision didn’t make the guidelines disappear. They continue to exist, just not as a mandatory base for imposing sentences. Before a federal convict is sentenced, a judge must still determine what sentence the guidelines would impose. Then the judge may deviate by giving reasons that demonstrate the judge isn’t abusing his or her discretion.

The defendant in Wednesday’s case, one Ryan Collins, was convicted by a jury of having downloaded 19 videos and 93 images of child pornography. The mechanical structure of the sentencing guidelines recommended a range of 262 to 327 months.

Federal minimum and maximum sentences for certain offenses, established by Congress, are still the law, and were unaffected by the Supreme Court’s decision on the sentencing guidelines. For possessing and distributing child pornography, Collins was guaranteed a sentence of at least five years and no more than 20. Prosecutors asked for the maximum. It was up to Judge Gwin to decide where within that range to sentence Collins.

Here Gwin went rogue -- or at least as rogue as a federal judge who doesn’t want to be overturned  can go. After the conviction, he polled the jury, asking them individually how long a sentence they thought Collins should get. The jury wasn’t told anything about the federal minimum or maximum, or about the guidelines.

The jurors, who had just convicted Collins and thus must have considered him guilty, offered answers ranging from no prison time to five years. The mean of their answers was 14.5 months and the median was eight months.

Gwin then sentenced Collins to the minimum allowed under the law, namely five years. He offered a number of reasons in explanation, including his disagreement with the policy articulated by the guidelines. In support of his conclusion, Gwin cited the jury poll.

The prosecution cried foul and appealed. The U.S. Court of Appeals for the Sixth Circuit therefore had to decide whether it was permissible for Gwin to rely, in part, on a jury poll to impose sentence.

In reaching its decision, the appeals court considered Gwin’s logic. In 2010, Gwin published an academic article explaining his reasoning. His basic argument was that sentences should reflect the moral standards of the community. The jury has the job of reflecting those standards. Polling the jury was therefore a useful way of ascertaining whether a guidelines sentence reflected community morality. And after polling in a number of cases, Gwin concluded that the guidelines sentences are way off base.

There’s something brilliant about Gwin’s logic. In old English common law, juries knew about the harsh sentences that would be imposed, which in theory included the death penalty for felonies.  They sometimes engaged in what was called “pious perjury” -- finding defendants guilty of stealing goods of lesser value than were actually stolen, allowing the crime to fall into the lower misdemeanor category. The tradition of that practice may have been one feature influencing Clarence Thomas in the 2005 decision.

Modern sentencing theory tends to favor the judge, not the jury. The Sixth Circuit cited a statement from one of his own cases, according to which juries “lack the tools necessary for the sentencing decision.” But Gwin was careful to say that the decision was his -- and that he was using the jury poll only as a way to gauge community sentiment.

In his article, Gwin also made the point that Congress instructed the U.S. Sentencing Commission that wrote the guidelines to consider “the community view of the gravity of the offense.” His polling trick shows how much the commission flubbed this. And the Sixth Circuit hinted that it agreed by repeating Gwin’s argument that the commission fell down on the job by ignoring actual community views.

Nothing in Gwin’s public record suggests that he is any kind of a radical. Appointed by Bill Clinton in 1997, he was in private practice in the 1980s and then spent eight years as a state trial court judge. He seems to be just a reasonable person tired of having to give unreasonable sentences.

If you think he’s right, there’s a lesson here about the value of judicial discretion. We won’t always like the sentences a judge imposes. But on the whole, we might do better relying on his or her discretion than on a disembodied commission in Washington that has no incentive to show mercy and every incentive to appear tough on crime. Maybe Congress should just get rid of the guidelines.

  1. There were various technical ways to avoid this in some circumstances including so-called “benefit of clergy” which let off first-time offenders and also transportation to Australia. But that's another story.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net