An unusual case resulted in a downward departure from the usual high sentence for child pornography crimes. In
United States v. Marshall, Dylan Marshall of Ohio pleaded guilty to
receiving child pornography when he was between the ages of 15 and 20. Marshall has a rare condition, human growth hormone deficiency, that makes him physically small even though he’s an adult. He also has a mental age of 15. For that reason, he argued to the sentencing court that he should be treated as a juvenile, and that the children pictured in the pornography seemed like peer group members. The trial judge, expressing concerns about the harshness of the sentence, sentenced Marshall to the mandatory minimum of five years. The Sixth U.S. Circuit Court of Appeals upheld that sentence, declining to further reduce the penalties.
The FBI caught Marshall sharing child pornography on a peer-to-peer file-sharing program. They traced it to the home Marshall shared with his parents; Marshall admitted that the pornography was his. A warrant and search revealed a total of 261 images and 46 videos. Otherwise, however, Marshall was functioning: he had finished high school, attended community college for four semesters, held a job at a commercial bakery and had his own car and credit card. Prior to sentencing, Marshall told a probation officer that he started looking for pornography involving kids his age, because he felt more like a 15- or 16-year-old because of his smaller stature (5’5” and 117 lb). A psychological evaluator concluded that he was a juvenile in every way but age, and testified at sentencing that Marshall’s condition prevented personal maturation.
In the end, the district court gave Marshall five years in prison, saying it couldn’t go below the mandatory minimum but felt that the sentence was inappropriate in this case. In a supplemental memorandum opinion, the court said Marshall was developmentally immature and that the mandatory minimum could be an Eighth Amendment violation in this case. It expressed hope that the Sixth Circuit might find a way to lower the sentence.
That court did not lower the sentence. Marshall argued that he should be afforded the Eighth Amendment protections of a juvenile, citing recent Supreme Court decisions about life and death sentences for juveniles. But the Sixth found it irrelevant for Eighth Amendment purposes that Marshall was found to be a juvenile mentally and physically. Under Supreme Court jurisprudence, the court said, the only age that matters is chronological age. Chronological age is also the basis for several rights Marshall could have enjoyed without question despite his stature, the court said, and the only way to keep the court system manageable. It then rejected several other arguments as meritless before affirming the sentence. A concurrence called the sentence “inappropriate, counterproductive and unnecessary,” but reluctantly concluded that it’s not grossly disproportionate and thus not an Eighth Amendment violation.
This is a disappointing decision—and one that may well be appealed to the U.S. Supreme Court, since Marshall had help from the University of Michigan Law School Federal Appellate Clinic. As the concurrence notes, sentencing is an individualized determination, which means a decision taking Marshall’s circumstances into account won’t dictate decisions for others. And more importantly, applying the mandatory minimum for receiving child pornography is inappropriate and unjust when the defendant is essentially an adolescent himself. The U.S. Supreme Court has noted that teenagers don’t have adults’ self-control or resistance to peer pressure. Indeed, I believe mandatory minimums are bad for precisely the reason they were bad in this case: they remove the judge’s ability to take circumstances into account when sentencing.
Seltzer Mayberg, LLC, focuses its practice on defending people accused of serious cyber crimes. If you’d like to talk to us about your rights and your options, you can call us 24 hours a day and seven days a week for a free consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.
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