Some Wis. judges unhappy with child porn law (UPDATE)

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FOND DU LAC, Wis. (AP) – Some Wisconsin court officials are pushing back against a recent law intended to stiffen punishments for those convicted of viewing child pornography.

The 2012 law calls for a mandatory prison sentence of at least three years, but some judges say the inflexibility prevents them from exercising their best judgment in cases in which a lighter sentence might be appropriate, the Reporter of Fond du Lac reported.

Fond du Lac County Circuit Court Judge Peter Grimm, who worked as both a prosecutor and a public defender before he was elected to the bench 22 years ago, said judges need discretion in sentencing to ensure the punishment fits the circumstances.

“These mandatory minimum sentences fly in the face of current judicial training in which judges are trained to use evidence-based sentences designed to let judges make the best decision based on the facts of the case,” Grimm said. “Judges should not be locked into a minimum sentence (just) because the Legislature wants to be tough on crime.”

Defense attorney Michael O’Rourke, a former prosecutor in Fond du Lac County, agreed. He gave the hypothetical case of a retiree with a clean record who, in the course of browsing an adult porn site, clicks onto a site that includes child pornography. That’s different from someone who already has a record, or who is actively seeking child porn, he said.

“Each case and each defendant are different,” he said. “Judges should have the ability to fashion a sentence that is good for both the community and aids defendants in rehabilitation.”

The law was sponsored by state Rep. Mark Honadel, R-South Milwaukee, who said he was concerned that judges were letting too many offenders stay out of prison.

“Sentences of less than three years were meant to be issued sparingly but became the standard,” Honadel said.

Republican state Rep. Jeremy Thiesfeldt, a Fond du Lac lawmaker who backed the law, said he thinks it’s fair because it ensures consistent sentences for everyone who commits the same crime.

He also noted an exception to the minimum sentence: A judge can issue lesser penalties if the offender is no more than four years older than the child depicted. The exception was added because of several cases involving teens who traded inappropriate pictures by cellphone.

“This at least allows the judge to recognize that it’s a different situation than other cases,” Thiesfeldt said.

Prosecutors in Dodge and Fond du Lac counties say the law should provide that sort of flexibility in all cases. The defendants are sometimes willing to plead guilty in exchange for lighter sentences, but might be less willing to do so knowing they’d face at least three years behind bars, Dodge County prosecutor Kurt Klomberg said.

Grimm, the Fond du Lac County judge, said he didn’t think that harsher penalties will stop people from surfing online for child porn. Instead he suggested that lawmakers focus less on those who view child porn and more on those who produce it.

“What we need to do is stop the creation of this (pornography) and put in prison the people who are doing these terrible things to the child victims,” he said.