Discrepancy in sex offender sentencing
By Sam Charles, Campus News Editor & Darryl Holliday, Metro Editor
Kevin Fuller’s life has changed drastically since his arrest for possession and distribution of child pornography in November 2009. Currently, the former associate professor in Columbia’s Math and Science Department is serving time in a minimum to low security prison at an undisclosed location after pleading guilty to the charges.
Upon his arrest, Fuller was fired from the college and ordered to live with his father until his sentence began. He was sentenced to six years with lifetime supervision on Feb. 9 by Judge Ruben Castillo, who allowed Fuller an extra eight weeks of freedom before surrendering himself into the custody of the U.S. Bureau of Prisons.
Fuller’s case is analogous to a decade- long sentencing trend in some sex offender cases, in which he and others convicted of so-called “non-contact” crimes have received substantially more time in prison than individuals who have actually molested children.
“The only reason the U.S. Supreme Court says we can criminalize personal possession of child pornography is because children were sexually abused to create those images,” said Carissa Hessick, associate professor of law at Arizona State University. “[But] it’s completely ridiculous to treat the personal possession of these images more severely than the creation of them.”
According to a 2009 report written by assistant federal public defender for the Western District of Missouri Troy Stabenow titled “Deconstructing the Myth of Careful Study,” the number of child pornography prosecutions, defendants sent to prison and total amount of prison time served have all risen steadily since 1997. At the same time, the number of probation cases involving child pornography has slowly declined.
In 1997, 183 child pornography offenders were sent to prison and in 2007, the number had risen to 1,145 according to the report. Likewise, in the same year, the average confinement time for those offenders was 20 months yet had risen to more than 90 months by 2007.
At the root of this discrepancy are the sentencing guidelines, according to Stabenow. The federal sentencing guidelines establish a range of advisory sentence lengths and are managed by the U.S. Sentencing Commission but have not been updated since 2004.
Data suggests increases in prosecution and prison time for the offenses are unreasonable in that they are more closely correlated to political wrangling than sex offense crimes as a whole.
Stabenow argues that instead of these increases in convictions being based on scientific research, they are largely the result of politics and “morality earmarks” slipped into legislation that has disproportionately “upped” the guidelines in relation to laws that reflect research.
Along with different jurisdictions, the military, state and federal levels of government have different sentencing guidelines.
Fuller’s eventual sentence was lower than the one initially suggested by Assistant U.S. Attorney April Perry. In the end, he was sentenced to six years, along with a lifetime of supervision following his release.
“As an attorney for the Department of Justice, [I] have an obligation to recommend the guideline sentence in most cases,” Perry said. “In [Fuller’s] case, the guideline sentence was between [nine and 11-years].”
“As long as someone is looking at pictures on the Internet, then there’s federal jurisdiction,” Hessick said. “The federal government is thought to be a government of limited power that can’t just regulate every single thing it wants to—there has to be a ‘jurisdictional hook.’ Things on the Internet, sent through the mail or traded in commerce, such as drugs, can all be considered jurisdictional hooks.”
However, the state and federal government can bring charges simultaneously, Hessick added.
“Whether they’re charged under federal or state law is a matter of who found out about the conduct first and who decided to file charges,” Hessick said. “The state and the federal government could file charges for images on the Internet.”
Crimes involving physical contact between an adult and a child are typically charged on the state level because of a lack of jurisdictional hooks and
“The people who write the laws would be surprised to find people who possess child pornography are going to prison for longer than people who molest kids,” Hessick said.
Because he sought therapy prior to his arrest, was well-educated, maintained stable social and familial relationships and was a non-contact offender, Stabenow said Fuller had worthwhile factors for a judge to consider in evaluating his risk to re-offend.
In 2007, a woman from Mundelein, Ill., was sentenced in state court to five years in prison after pleading guilty to sexually assaulting a 3-year-old boy.
In September 2010, a priest from Chicago’s western suburbs was sentenced to four years in prison for sexually assaulting a boy throughout a five-year period.
“The point is, that just shows there can be a real disconnect in the system,” Stabenow said. “And it’s up to each state to adjust their laws as they see fit.”
The upward trend of sentences for people found guilty of possessing and distributing child pornography suggests more weight is placed on non-contact sex offenses opposed to contact offenses. This is potentially due to the Internet’s involvement in non-contact cases.
“But there’s a lot of research now that says people who look at child pornography aren’t necessarily going to go molest a child,” Stabenow said. “And to some people, that seems counter-intuitive.
Likewise, the nuances of sex offenders are complicated and involve many variables, according to Joel Falco, Fuller’s personal psychotherapist and director of specialized treatment programs at the Center for Contextual Change, 815 W. Van Buren St.
Claiming he was molested as a child, Fuller falls into the 65 percent of sex offenders who have experienced sexual abuse at a young age. According to Falco, less than 50 percent of the general population experiences sexual abuse at a young age.
According to Falco, recidivism rates—the chances an offender will relapse—for sex offenders currently stand at around 17 to 18 percent and decreases to 12 percent with counseling.
The sentencing system for those found guilty of possessing and distributing child pornography, despite the crime’s severity, remains illogical, according to Stabenow, who has a combined experience of more than 10 years as a prosecutor and defender of such crimes.
At one time, the federal statutes for sentencing were mandatory but have become advisory via a 2005 decision by the Supreme Court in the case of U.S. v. Booker. The case concerned disproportionate sentences in crack cocaine prosecutions versus substantially lower sentences for distributors of pure cocaine, who often dealt in much larger quantities.
The implication for what’s going on in the child pornography cases is that judges now have the ability to factor in relevant circumstances, such as the defendant’s history when deciding cases, according to Stabenow.
If a judge has a disagreement with the logic of a guideline, he or she can now alter the sentence based on relevant factors surrounding the case, Stabenow said.
In Fuller’s case, Judge Castillo did not believe the suggested nine to 11-year sentence was necessary.
“All I can say is each of [the sentencing statutes] is created independently, so it’s in the hands of whoever writes that particular bill at the particular time,” Stabenow said. “We would all love to believe every piece of legislation is created by someone who really knows about that subject, [but] that’s really not the case.”
Fuller’s mother said she has hope his experience and willingness to rehabilitate can help others in their own struggles.
“He’s got experience behind him going through this ordeal, and he may be able to help others in the future and just help the whole area of child abuse,”
Bobbie Fuller said of her son. “It has to start from within versus the way the federal government seems to be handling it.”
Hessick attempts to analyze the disproportionate rise in child pornography possession sentencing and separate it from sexual molestation in her report titled
“Disentangling Child Pornography from Child Sex Abuse,” which is expected to appear in the Washington University Law Review this month. She suggests reforms that could moderate sentencing to an appropriate level, including re-evaluating the nature of the Internet in “distribution” and “receipt” of child-centered pornographic images.
In Fuller’s case, unrelated sentences have shown contact offenders have repeatedly received substantially more lenient prison time, and in many cases, avoided lifetime supervision entirely—potentially uncovering a discrepancy in the way sentences are advised, created and applied to offenders.
Stabenow agrees and offered his suggestion for correlating sentences to more appropriately fit sex offenses.
“In the long run, the guideline has to be revised,” Stabenow said. “It has to be revised in a way that’s consistent with science