'Marginal deterrence' discussed

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A May 29 decision from the Seventh Circuit clarifies the concept of “marginal deterrence” in sentencing.

In doing so, the court affirmed a maximum, 360-month sentence for producing child pornography.

James Beier pleaded guilty in Wisconsin federal court to producing child pornography. He had produced a number of videotapes and DVDs depicting nude prepubescent boys. Some showed him fondling the boys’ genitals. He had also had oral sex with some of the boys, though off-camera.

Judge John C. Shabaz sentenced him to 360 months, which is both the statutory maximum and the bottom of the applicable guideline range.

Beier appealed, but the Seventh Circuit affirmed, in a decision by Judge Richard A. Posner.

Beier raised several arguments why the sentence was unreasonable, but the court rejected them all.

First, he argued that he had been sexually abused himself as a child, and asserted that such a history makes a person less able to avoid becoming a child molester.

Turning the argument around, the court suggested that such a factor may actually warrant a longer sentence, rather than a shorter one.

The court wrote, “The more difficult it is for a person to resist a desire for sexual contact with children, the more likely he is to recidivate, and this is an argument for a longer prison sentence.”

The court also noted that, the stronger the impulse to commit a criminal act, the greater must be the punishment to deter it.

The court then turned to the marginal deterrence argument. Relying on U.S. v. Newsom, 402 F.3d 780, 785-86 (7th Cir. 2005), Beier argued that, because other child pornographers engage in worse misconduct than him, such as rape, the principle of marginal deterrence means that he must receive a sentence less than the maximum.

However, the court labeled this argument a misunderstanding of the principle.

The principle works as follows: the punishment for robbery must be lower than that for murder, because, if robbery were punished as severely as murder, a robber would have an increased incentive to murder his victim in order to eliminate a key witness.

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The court explained that the principle was inapplicable in this case, because a child who is raped is more likely to complain than one who is “merely touched,” and a rape is also more likely to result in physical evidence.

Thus, a defendant who engages in the worse conduct cited by Beier — rape — is also more likely to be apprehended, rather than less likely, whereas the robber who murders his victim is less likely to be caught than one who does not.

The court concluded, “reducing the punishment of the child pornographer because another pornographer might be a worse molester yet could not be sentenced more heavily for pornography would have no effect other than to increase the amount of child pornography; and a reduction in punishment that had only that effect would not reduce an unwarranted disparity in sentencing (emphasis in original).”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.