MEMORANDUM, ORDER & JUDGMENT
TABLE OF CONTENTS
I.Introduction............................................................. 319
A. Constitutionality of Statute............................................. 320
B. Unconstitutional Denial of Jury’s Broad Power to Refuse Conviction......... 322
II. Facts................................................................... 323
A. Defendant and the Crime.............................................. 323
1. Childhood Sexual Abuse in Sicily..................................... 324
2. Resulting Psychological Trauma...................................... 325
B. Procedure............................................................ 326
1. Investigation ...................................................... 326
2. Arrest............................................................ 327
3. Indictment........................................................ 329
4. Motion to Dismiss Indictment........................................ 329
5. Jury Charge....................................................... 330
a. Affirmative Defense of Insanity.................................... 330
b. Mandatory Minimum Sentence.................................... 330
6. Trial.............................................................. 331
a. Polizzi’s Testimony............................................... 332
b. Dr. Lisa Cohen.................................................. 333
c. Dr. Eric Goldsmith .............................................. 334
d. Dr. N.G. Berrill ................................................. 337
7. Jury Verdict....................................................... 339
8. Post-Verdict Proceedings............................................ 339
III. Constitutional Objections to the Statute ..................................... 341
A. Fundamental Problem with Passive Receiving and Possessing Without Evil Intent as Charged Under Statute..................................... 341
*318 1. Generally ......................................................... 341
2. Definitions ........................................................ 343
3. Operative Elements of the Receipt and Possession Statutes.............. 345
4. X-Citement Video.................................................. 349
5. X-Citement Video Does Not Control.................................. 351
6. Overbreadth....................................................... 353
7. Precedent......................................................... 354
a. Defining “Receipt” and “Possession”............................... 355
b. Inferring Intent from Non-Operative Facts......................... 357
8. Remedy........................................................... 358
B. Cruel and Unusual Punishment......................................... 358
1. Is the Punishment Cruel? ........................................... 359
2. Is the Punishment Unusual?......................................... 360
C. Disproportionate Penalty .............................................. 361
1. Proportionality Analysis............................................. 361
2. Is Five Years Constitutionally Disproportional? ........................ 364
a. The Nature of Polizzi’s Crimes and the Contemplated Penalty......... 364
i. Severity of Offenses ......................................... 364
ii. Harm Caused by the Offenses................................. 365
iii. Severity of Punishment ...................................... 366
iv. Polizzi’s Culpability.......................................... 368
b. Punishment for Other Offenses in This Jurisdiction .................. 369
c. Punishment for Similar Offenses in Other Jurisdictions............... 370
D. Irrationality.......................................................... 372
1. Generally .................................... 372
2. Federal Laws Criminalizing Receiving or Possessing Child Pornography Are Not so Irrational so as to Violate the Constitution................. 374
E. Lenity............................................................... 377
F. Free Speech.......................................................... 378
1. History of Pornography............................................. 378
2. First Amendment Exceptions........................................ 380
a. Obscenity....................................................... 380
b. Sexually Oriented Expression..................................... 383
c. Child Pornography............................................... 384
G. Search and Seizure.................................................... 386
1. Summary of Relevant Facts ......................................... 386
2. Fourth Amendment ................................................ 387
3. Reasonable Expectation of Privacy................................... 388
4. Third-Party and Envelope-Content Doctrine........................... 390
5. Electronic Communication Privacy Act................................ 392
6. Probable Cause for Search of Home .................................. 394
7. Policy Considerations............................................... 396
H. Separation of Powers.................................................. 397
1. Mandatory Mínimums Historically and Today.......................... 398
2. The Judiciary’s Power Under Article III .............................. 399
3. Congress Has the Power to Enact Mandatory Mínimums................ 400
4. Analysis of the Statute.............................................. 401
I. Jury Finding of Predicate Facts ........................................ 402
IV. Unconstitutional Refusal to Inform Jury of Mandatory Minimum Incarceration ... 404
A. History and Context of Sixth Amendment................................ 405
1. Goebel............................................................ 408
2. Ryder Papers...................................................... 413
3. Old Bailey Session Papers........................................... 417
B. Nineteenth- and Twentieth-Century Judicial Attempts to Restrict Sixth Amendment Jury Discretion.......................................... 420
C. Some Modern Attempts to Eliminate Jury Power Violate the Constitution____ 424
D. Recent Supreme Court Caselaw Rejects Attempts to Limit Jury’s Power..... 426
1. Supreme Court Places a High Value on the Jury’s Historic Sentencing Role 427
*319 2. Supreme Court Invalidation of Laws and Practice Incompatible with Historic Jury Role................................................ 428
3. Sentencing Cases Suggest that the Supreme Court Recognizes the Jury’s Power to Moderate the Law’s Harsh Effects......................... 431
E. Requirement of Jury Knowledge in View of the Unusual Situation, Statute and Punishment of Which the Jury Was Not Aware......................... 433
1. Thomas and Pabon-Cruz Are Premised upon a Now Inappropriate Attempt to Curtail Jury Powers.................................... 433
a. Thomas........................................................ 433
b. Pabon-Cruz..................................................... 435
i. Procedural History.......................................... 435
ii. Post-Booker, Pabon-Cruz, Thomas and Shannon Require Reinterpretation .......................................... 437
2. Gilliam Language Represents the Current General Role of the Informed Jury as Representative of Community Mores ........................ 438
3. In Polizzi’s Case, Informing the Jury of the Applicable Penalty Was Necessary Because of the Defendant’s Unusual Background and the Unknown Punishment............................................. 440
F. Variability of Results Depending Upon Informed & Non-Informed Jurors____ 440
G. Conclusion........................................................... 443
V. Defendant’s Motion to Inform the Jury of Mandatory Minimum Should Have Been Granted............................................................... 443
A. Defendant’s Rule 33 Motion Should Be Granted........................... 446
B. Error Was Prejudicial................................................. 448
C. Sentence............................................................. 448
VI. Conclusion............................................................... 449
A. Constitutionality of Statute............................................. 449
B. New Trial as to Counts One Through Twelve............................. 449
C. Sentence on Counts Fourteen Through Twenty-Four...................... 450
D. Stay................................................................. 450
Appendices.................................................................... 450
A. Selected Bibliography on Historic Powers of Jurors When Sixth Amendment Was Adopted....................................................... 450
B. State Statutory Mínimums and Child Pornography Statutes................ 454
C. Federal Statutory Mínimums........................................... 487
I. Introduction
Defendant, Peter Polizzi, was charged with — and convicted after a jury trial of— twelve counts of receiving and eleven counts of possessing child pornographic images under 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). The pictures were so sick-enly loathsome as to lead inexorably to jury denouncement. See Superseding Indictment, Mar. 8, 2007, Docket Entry No. 35; Govt.’s Letter to Dismiss Count Thirteen, Aug. 27, 2007, Docket Entry No. 62. He has been in federal custody since October 5, 2007, when the jury delivered its verdict.
A conviction for receiving child pornography under 18 U.S.C. § 2252(a)(2) requires a mandatory minimum sentence of five years’ imprisonment; the maximum is twenty years. 18 U.S.C. § 2252(b)(1). Ten years is the maximum for conviction for possession under 18 U.S.C. § 2252(a)(4)(B); there is no minimum. 18 U.S.C. § 2252(b)(2). Whether a charge based on the receipt and possession of the same picture is duplicative — because upon receipt via computer, possession necessarily begins — need not be addressed since the multiplicity of counts does not affect the sentence being imposed. See Parts V.C, VI.C, infra.
*320 Before it rendered its verdict of guilty, the jury was not informed of the five-year mandatory minimum sentence a conviction on the receipt counts entailed despite the defendant’s request for such an instruction. Told of the minimum after the verdict was received, a number of jurors expressed distress, indicating they would not have voted to convict had they known of the required prison term. They had assumed that the defendant would receive treatment, not long incarceration. See Part II.B.8, infra.
The jury rejected Polizzi’s alleged affirmative defense of not guilty by reason of insanity. See Insanity Defense Reform Act of 1984 (“IDRA”), Pub.L. No. 98-473, 98 Stat.2057 (codified at 18 U.S.C. § 17). The defense was largely predicated on Pol-izzi’s himself having been repeatedly and severely sexually abused as a child. See Part II.A, infra.
Defendant’s background was positive. See id. He was brought to this country when he was a young teenager after a childhood in Sicilian poverty; had little formal education, yet, after teaching himself to play an instrument, led a popular local band; worked extremely long hours at menial labor as a boy, and then bought and built-up a successful restaurant; had a loving wife and five supportive lawfully engaged sons; lived in a fine home; was well respected in the community by the police, clergy and others; had no criminal record; viewed the charged pornography downloaded from the Internet alone in a double-locked room above his garage; and, upon his arrest, cooperated fully with the police, suggesting to them that whoever participated in producing these dreadful pornographic images should be prosecuted. See Parts II.A, II.B.1-2, infra.
Defendant now moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and for dismissal pursuant to Rule 29. Def.’s Mot. to Vacate J., Docket Entry No. 123. Two main issues are presented: First, are the statute and mandatory minimum sentence constitutional facially and as applied? See Part III, infra. Second, should the jury have been informed of the mandatory minimum before it began its deliberations? See Part IV, infra.
A. Constitutionality of Statute
Although the constitutional arguments against enforcement of the statute facially and on the facts charged are powerful, each is rejected on the basis of precedent. Serious questions about constitutionality suggest that the appellate courts and Congress need to revisit these issues.
A fundamental problem is presented by the statute and charge. Passively “receiving” and passively “possessing” images sent over the Internet may lack the constitutionally required scienter. See Part III.A, infra. There is a limit to what life the courts can breathe into a statutory provision otherwise dead under the Constitution by incorporating judicially created scienter and mens rea qualifications. In view of appellate assumptions that the charged child pornography statute is valid, dismissal on the basis of unconstitutionality is denied. These assumptions need to be reconsidered on appeal.
There is merit to defendant’s argument that the punishment violates the Eighth Amendment, but it cannot be said that the statute is unconstitutional because it is not both cruel and unusual. See Part III.B, infra. Neither can it be said that the punishment is unconstitutionally disproportionate to the crime charged. See Part III.C, infra. Congress has found that receipt and possession of child pornography is demeaning to the children depicted and increases the threat of sexual abuse of children. Utilization of the criminal law and the threat of heavy penalties to mini *321 mize the risk of sexual abuse of children are appropriate and can be considered proportionate.
There is merit to defendant’s argument that the heavy penalty is irrational in view of the specific charges, but it cannot be said that it is unconstitutionally so. See Part III.D, infra. It can be justified on a congressional view that criminalization of all aspects of the distribution chain will discourage people from downloading such images, deterring purveyors and those sexually abusing children. This argument of rationality is less persuasive than it would be were the purchase by a down-loader an element of the offense charged— which it is not here — since the definition would then strike directly at the profit motive, a chief driving force of the current Internet traffic in child pornography images.
There is merit to defendant’s contention that the rule of lenity requires interpretation of the applicable statute to exclude mere passive receipt and possession as charged. It is not appropriate, however, to declare invalid the receiving and possessing provisions charged since appellate courts have assumed they are valid despite their defects. See Part III.E, infra. The statutory provision requiring parsimony in punishment yields to specific sentencing provisions requiring a mandatory minimum. Id.
There is merit to defendant’s assertion that the statute charged violates the First Amendment free speech protections of persons in their own homes viewing, reading, or hearing what they wish, but it cannot be said the statute is unconstitutional on this ground. See Part III.F, infra. Free speech may be limited by Congress should investigation demonstrate that it leads fairly directly to sexual abuse of children. Child pornography enjoys no prima facie First Amendment protection.
There is merit to defendant’s argument that the investigation leading to his arrest was a violation of his Fourth Amendment right against unreasonable searches and seizures, but no motion to suppress was made, and it cannot be said it was unconstitutional given current statutes and precedent. See Part III.G, infra. Using computer forensics to secretly find out what a person is viewing in the privacy of his own home arguably violates constitutional protections, but it may be justified, as precedents suggest, by the lack of any expectation of privacy in the computer “address” of a receiver of images transmitted through the Internet.
There is merit in defendant’s contention that mandatory mínimums violate separation of powers by shifting part of the judicial discretional sentencing power from the courts to Congress and to the executive through its charging ability, but the statute cannot be held to be unconstitutional on that ground. See Part III.H, infra. Appellate courts repeatedly have recognized that sentencing is a shared power among the three branches and that the legislature may limit sentencing discretion through mandatory mínimums and otherwise.
There is merit in defendant’s argument that forcing the jury into a general verdict without informing it of the verdict’s punitive implications violates the
jury’s constitutional role
in finding predicate sentencing facts to provide a basis for sentencing enhancement as outlined in
United States v. Booker,
*322 B. Unconstitutional Denial of Jury’s Broad Power to Refuse Conviction
The American petit jury is not a mere factfinder. From the time the right to trial by jury was embedded in the Constitution as a guarantee to criminal defendants through the Sixth Amendment in 1791, it has been expected to bring to court much of the wisdom and consensus of the local community. See Part IV, infra. It has, when jurors deemed it necessary, stood as a guardian of the individual against the sometime cruel overreaching of government and its menials. Much of our modern procedural “reforms” have been designed to limit the jury’s reach and power, increasingly shifting control to judges; these efforts have attempted unconstitutionally to transform the jury into a simple factfinder from its grander historical position under the Constitution as representative of the people in the courts.
Recent Supreme Court developments stress “originalism” — that is to say, the meaning at the time the relevant constitutional language was adopted. The approach has been applied to sentencing in a series of Supreme Court eases reviving the original meaning of the Sixth Amendment guarantee of trial by jury in criminal cases and the right of a defendant to be confronted with opposing witnesses. See Part IV.D, infra. The development is based upon what is believed to be colonial practice immediately preceding adoption of the Sixth Amendment, and the reception of then current British practice. See Part IV.A, infra.
Extrapolation of the recently emphasized constitutional principle requiring a jury finding of the facts needed to enhance a sentence requires courts to recognize that colonial and British juries in the late eighteenth century had power to control the finding of guilt in order to affect the sentence. In exercising its extensive discretion, the jury was expected to be aware of, and understand, the sentence that would follow from its decision. That jury power to know and act may not be eviscerated, as was done in this ease by this court’s error in failing to advise the jury of the five-year mandatory minimum sentence required on conviction of receipt of child pornography.
Although much of modern civil and criminal procedural rule-making has been devoted to controlling juries, see Part IV.C, infra, the emphasis on originalism by the Supreme Court in sentencing and confrontation requires enforcement of a basic element of the Sixth Amendment as originally understood: the jury of the vicinage, being aware of the sentencing implications of a finding of guilt, had the frequently exercised power to refuse to follow the law as construed by the court, and could acquit or downgrade the crime in order to avoid a sentence it deemed excessive.
The complexity of modern United States criminal law and the general public’s lack of detailed knowledge of federal statutory provisions require that, in the few cases where necessary, the jury be informed of such matters as the required minimum term of incarceration that will follow from its verdict so that it can exercise its constitutionally mandated historic role. Cases which have rejected this view, on the ground that it permits a form of impermissible “nullification,” have not followed the Sixth Amendment as it must be interpreted after recent Supreme Court originalist holdings. See Part IV.E, infra.
Consideration of jury power contemporaneous with the Sixth Amendment’s adoption leads to the conclusion that this court committed constitutional error when it denied defendant’s request to inform the jury of the statutory mandatory five-year minimum applicable to the receiving counts. A new trial on those counts, granted pursuant to defendant’s Rule 33 motion, will be required to correct that prejudicial error. *323 See Part V, infra. The requested instruction might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity.
This ruling on what the jury is entitled to know about sentencing is limited to that small group of cases where the jury would not be expected to know of the applicable harsh mandatory minimum. It would not, for example, appear to be applicable to robbery, terrorism or personal assaults with weapons where juries expect long prison terms to be imposed. It would also not apply where the defendant asked that the jury not be informed because of potential prejudice.
An acquittal on the receiving counts would not mean the defendant would go unwhipped of justice. Because they do not require a minimum sentence, the possession counts stand; they provide ample ground for serious non-mandatory penalties, including a substantial prison term, a heavy fíne and a long period of supervised release. See Parts V.C, VI, infra. The instant trial and the attendant evidence and publicity have revealed a man who entertains himself by buying, downloading and viewing the most vile child pornography; the cost of his defense was considerable; and the loss of self-respect and the esteem of community and family constituted a devastating punishment. The criminal process and the trial are the modern equivalents of eighteenth-century branding, being put in stocks, or being carted about the community in shame. Defendant, whatever the ultimate outcome of the prosecution, is now publicly marked as morally culpable.
II. Facts
A. Defendant and the Crime
As described more fully below, Peter Polizzi, now fifty-four, immigrated here with his family from an impoverished area in Sicily when he was in his early teens, speaking only Italian. Trial Tr. 164. With just a few years of schooling, as a young man he bought a restaurant in Queens, and over the next thirty-five years turned it into a valuable business. Along the way, he met and married the girl next door, id. at 169, had five successful sons who are all in college or college graduates, id. at 165, 1366, and bought a fine home.
Polizzi taught himself to play the guitar. He performed in a band at Italian weddings, id. at 169, 1018, until one of his band members was shot and killed in front of him during a robbery. Id. at 1022. A religious man, he attended church regularly. Id. at 907. In his free time, he organized his extensive collections of music, baseball cards, movies, comic books, and other “collectibles;” see Part II.B.6.b, infra; he placed great importance on being “nice and neat.” Trial Tr. 748, 869.
His success was, in large part, the result of hard physical work, a strict, formalized routine with very long hours, and the help of his wife and children. Id. at 864, 1018 (noting that he regularly worked up to eighteen hours per day, seven days a week).
For some five years before his arrest in 2005, Polizzi regularly repaired to a double-locked room over his detached garage to view child pornography on his computer; eventually he possessed over 5,000 pictures, the vast majority of which were of young girls. Id. at 355, 859. Polizzi claimed he came across child pornography accidentally while looking for adult pornography, and was “shocked” by what he saw. Id. at 1046. He thought such “filthy” photos should be outlawed, but did not realize they were illegal; if they were forbidden, he asked himself, why were they freely available on the Internet? Id. at 1047,1105 (“Now, I know it’s wrong, but back then I didn’t — I didn’t know it was wrong. You say it was illegal, to me some *324 thing that is there you see is not illegal, because if it’s illegal what to stop, what is there is illegal [sic]?”).
With what he testified as the goal of eventually turning his collection over to law enforcement, Polizzi downloaded all the photos he could find. Id. at 1047, 1070; see id. at 782. The images reminded him of being sexually abused multiple times as a child in Sicily, and he said he wanted to help those children he now saw suffering the same fate. Id. at 1046; see Part II.B.6.a, infra. Yet, with what he testified was fear of law enforcement (based upon his own abuse by Italian police officers), and hesitant to reveal his own sexually abused past of which his family knew nothing, he never notified any authorities. Trial Tr. 1048, 1071 (“Always, when I see the police I get anxiety attack, even now.”).
There is no evidence that the defendant ever committed another crime. See id. at 165. Polizzi never sent any photos to anyone nor did he enter teenage chat rooms or attempt online solicitation. Id. at 534-38, 1366; see id. at 1058. Beyond his present convictions for receipt and possession of child pornography, no allegations of production or distribution of such images nor of any other improper conduct by the defendant have been made.
1. Childhood Sexual Abuse in Sicily
As a child, Polizzi was raped by his uncle, a family friend, and two Italian police officers. He also witnessed the murder of one playmate and the kidnapping of another by other police officers, possibly in connection with sexual abuse. Until he was arrested for the instant offense, Poliz-zi had not told anyone for over forty years of having been sexually abused. Based on defendant’s testimony and out-of-court psychological examinations, it was assumed that defendant’s described sexual abuse when he was a child took place. See Def.’s Letter 2 n. 3, Dec. 5, 2007, Docket Entry No. 114 (reporting that it was generally accepted by most of the jurors that the incidents in Sicily did happen). Thus, expert evidence was not offered on the issue of his credibility regarding this fact. Cf. generally Christopher Slobogin, Experts, Mental States, and Acts, 38 Seton Hall L.Rev. 1009 (2008); Edward J. Im-winkelreid, The Case Against Abandoning the Search for Substantive Accuracy, 38 Seton Hall L.Rev. 1031 (2008).
Prior to leaving Italy at about age twelve, Polizzi and his family lived in a small rural village in Sicily, working as sharecroppers. Trial Tr. 941. At trial, Dr. Jane Schneider, a cultural anthropologist specializing in 1950s and 1960s Western Sicily, testified as to the general poverty, living arrangements, and economic structure of the region, lending general background support to Polizzi’s account. Id. at 166, 721-37. She confirmed that Burgetto, Polizzi’s village, was then a “very poor,” “socially stratified” “rural town” of about 6,500 people, a peasant society with a feudal-like history of large estates and sharecroppers, id. at 728:
The majority of the population had very little land or no land and they worked for or were sharecroppers of large landowners .... If they were fortunate they had a mule or maybe a donkey, they commuted to their fields sometimes on mule back.... The mules lived in the household with the family. A typical ... poor peasant’s house was maybe one room or two rooms with perhaps alcoves for children to sleep in ... and adjacent to that would be the stall with the family’s mule.
Id. at 729.
Dr. Schneider also described the corrupt carbina, the Italian national police force, and its officers, the carabinieri:
*325 [T]he police in a rural town in those days would have been members of the car[b]ina and this is a quasi militarized national policing institution in Italy.... [T]he carabinieri would not have local ties ..., you would be assigned to some community in Italy where you didn’t have any local connection, so the carabi-nieri was for the most part outsiders to the communities in which they were policing. ... [T]he police and carabinieri in Sicily, especially western Sicily, which got this history of large estates and the Mafia and so on, were very — had a very bad reputation, a reputation for corruption, reputation for not prosecuting organized crime, criminal offenses....
Id. at 732-33. A poor peasant family, Polizzi and his six younger brothers and sisters shared what was little more than a hovel with the family’s mule. Id. at 942.
Polizzi’s nearby grandparents often cared for him. When staying at their house, he shared a bed with his teenage uncle, who repeatedly sexually molested him beginning when he was four years old. Id. at 952. At age seven, Polizzi was beaten and raped by his uncle, who threatened to kill him if he ever told anybody. Id. at 959-62. Despite the warning, he did tell his mother, only to be hit by her and accused of lying. Id. at 963.
A year later, Polizzi was raped again. Sent into the fields on an errand, a family friend — his brother’s godfather — beat and sodomized him at knifepoint, similarly threatening to kill him if he said anything. Id. at 970-71. Polizzi later revealed the abuse to the village priest, whose only comment was “don’t do that again, because God [is] going to punish you.” Id. at 990; see id. at 1247.
The third and fourth incidents took place when he was nine. Walking home from school, he was grabbed by two Italian carabinieri, who raped him in a stable. After they finished, one of the officers took his service revolver, inserted it in Polizzi’s anus and then his mouth, telling him that he and his family would be killed if he ever told. Id. at 975-79. Polizzi never went back to school, obtaining work in a bakery instead. Id. at 980.
Polizzi had two friends in the village, boys his age who had also been raped. Id. at 983-84. Playing hide and seek on the outskirts of town one summer night, they suddenly heard “screaming, running.” Id. at 987. Polizzi froze under a bush, but his two friends decided to run, only to be caught by carabinieri. The police officers beat one of his friends, punching and kicking him to the ground, where he hit his head on a rock. “[A]s soon as [his friend] fell he didn’t move no more.” Id. at 988. The carabinieri fled, taking one boy with them and leaving the other dead. Polizzi never again saw the boy the police had taken away. Id. at 987-88. A year or two later, Polizzi left for the United States with his family.
2. Resulting Psychological Trauma
Although he achieved the American dream in many ways, Polizzi retained, according to his own testimony and that of experts, psychological scars from his childhood abuse. His wife and children did not know these secrets from his past. After the Sicilian priest, the next person Polizzi told about these rapes, some forty years later, was a counselor assigned after his arrest. Id. at 990, 1240, 1302. Polizzi’s adult life was marked by post-traumatic stress and obsessive-compulsive disorders, though he never sought any mental health treatment. Id. at 791, 1209; see Part II. B.6.a, infra. Lacking self-awareness, he considered his behavior normal. See Trial Tr. 873; Part II.B.4.b, infra.
Polizzi also suffered head injuries from several car accidents in the early to mid-1990s where he lost consciousness. See Trial Tr. 1139-40. Because the only medi *326 cal record introduced was a recent MRI scan that by itself did not reveal anything of significance, it is impossible to say how, if at all, the head trauma affected him. See id. at 1262-64,1320.
The opposing experts at trial disagreed on the extent of his mental functioning and health. See Parts II.B.6.b-d, infra. Upon a retrial, the physical and psychological history of the defendant should be examined in greater depth.
B. Procedure
1. Investigation
The investigation leading to Polizzi’s arrest and convictions began with an unsolicited spam email advertising a “private child porn club” received by a Long Island householder. Trial Tr. 182, 199. He forwarded it on February 21, 2005 to the Suffolk County Police Department, which promptly began a joint investigation with the Federal Bureau of Investigation (“FBI”).
The email advertisement included a website address for those interested in joining the “club.” Following this lead, the investigators were directed to a “join page.” Entitled “Pedo Lovers 2004-2005,” the join page contained thumbnail sized photographs of child pornography. Id. at 203. Using an undercover email account, the officers joined the “club,” called “Hardcore.” Id. at 201-55. It charged eighty-nine dollars for a thirty-day membership. Id. at 209.
Becoming a member of “Hardcore” was not a one-step process; multiple pieces of identity-confirming information, including name, address, credit card number, and a valid email address were required in order to receive a log-in ID number and password by subsequent email. Before receiving the club’s actual website address, the agents had to find out from their credit card company the exact amount charged to the card and re-enter that information. Id. at 219-20. Hardcore’s membership conditions included the admonition not to talk about the “members area” with any authorities. Id. at 234. Access to the club’s website was only possible with the correct web address, log in and password. Id. at 244.
Polizzi testified that at the time he joined the club, he did not have to go through any of these steps beyond entering his name and credit card number. He admitted that he had paid eighty-nine dollars for three thirty-day memberships to “Hardcore.” Id. at 148, 155, 208, 215.
Tracking down the producers and subscribers of the site involved a complicated forensic process stretching across the world. The join page was found to be located in Asia, probably Hong Kong, but the subsequent money trail was traced back to New Jersey. Id. at 207. By looking up the registrant of the website, the agents discovered that the website contents were moving alternately between web host companies in Scranton, Pennsylvania and Fremont, California. Id. at 242, 247, 266. The companies had been paid with a valid Russian credit card. Id. at 267, 546.
On March 10, 2005, the FBI sent a “preservation letter” to the Scranton web host, ordering that the contents of the site be preserved as of that date. Id. at 251. On April 20, 2005, law enforcement officers executed a federal judicial search warrant on the host company for the Hardcore website’s hard drives. See Govt.’s Letter 1, Mar. 19, 2008, Docket Entry No. 136; Part III.G, infra (discussing subpoenas and search warrants in Internet investigations). The hard drives seized contained the preserved data from March 10, 2005, as well as data from, and a copy of, the website as of the day of the search. Trial Tr. 256. Hard drives from the California web host were also seized through the use *327 of federal judicial search warrants and the site temporarily shut down. See Govt.’s Letter 1 n. 1, Mai’. 19, 2008. Soon after-wards, Hardcore began operating from another web host on Christmas Island in the Philippines. The trail for the website’s producers reached a dead end overseas in Russia. Trial Tr. 249, 269.
Executed as well was a federal judicial search warrant on the New Jersey company handling the website’s credit card and other financial information. See Govt’s Letter 1 n. 1, Mar. 19, 2008. Information from the hard drive seized there allowed law enforcement to track the money trail, but only as far as Belize. Trial Tr. 265.
Law enforcement used forensic software to make exact copies of the confiscated hard drives and preserve the data. Id. at 259. Because technicians noticed and avoided an encryption trap on the March copy, that data was intact. Id. at 261. On the April copy, however, much of the data — but not the “access log” — had been partially encrypted. Id. at 262. An access log records visitors to a website; Hardcore’s log on the April copy had captured 900,000 Internet Protocol (“IP”) addresses, some duplicative, for a ten-day period in March 2005. Id. at 263, 273. By using a computer program, the agents were able to organize the data by IP address, date, and time, revealing that the 900,000 IP addresses represented some 1,900 unique “customers.” Id. at 264.
Relatively simple technology — a “who is” search — revealed which Internet Service Providers (“ISPs”) owned and leased these IP addresses. To obtain the identities of Hardcore’s customers, the ISPs were administratively subpoenaed by the FBI for the subscriber information of the users of the logged IP addresses. Id. at 264. (Two rounds of administrative subpoenas were required because the first set returned incorrect information; it turned out that the access log had a built in forty-two minute delay, so a second round of subpoenas was necessary. Id. at 273-74.) Nine hundred of the website’s customers were located in the United States. Id. at 553-54, 560.
One of the IP addresses listed on Hardcore’s access log, 24.90.31.98, was eventually traced to Polizzi. Id. at 270. The access log for that IP address was eight pages long; some entries showed repeated access on March 28, 2005 at 2:21 p.m., using the “GET” command. Id. at 273. The “GET” command tells a computer to take a certain action. In this case, the computer using Polizzi’s IP address was “getting” (downloading) a number of images in Hardcore’s “archives girls” area. Id.
The “who is” search revealed that Time Warner Cable owned IP address 24.90.31.98. Id. at 273-75. In response to the administrative subpoenas, Time Warner identified Peter Polizzi of Queens as the user of that IP address on that date and time. Id. at 276. The agents then obtained a federal judicial search warrant for his home. Id. at 279; Govt/s Letter 1-2, Mar. 19, 2008. A total of 168 judicial search warrant packets were ultimately issued based on the Hardcore investigation, leading to about seventy indictments, including Polizzi’s. Trial Tr. 561.
2. Arrest
On November 16, 2005, FBI and local law enforcement agents arrived at defendant’s home to execute a federal court ordered search warrant seeking computer equipment and evidence related to the possession of child pornography. Id. at 150, 208, 279. Arriving at 6:00 p.m. at the single-family residence, the agents had to wait almost two hours for Polizzi and his wife to arrive home from work at the restaurant. Trial Tr. 280. While pulling into their driveway, the couple was approached by the agents who identified *328 themselves and explained that they were there to search the house for child pornography pursuant to a warrant. Id. at 283. Polizzi said nothing, but nodded, opened the driveway gate for the agents, and drove inside.
The officers found nothing unexpected during their initial “safety search.” Poliz-zi’s wife became “hysterical” as the officers questioned the couple and their youngest son, then sixteen, in the kitchen, id. at 286, 296, 592-98, 742; she wondered whether whatever happened might have been caused by a friend of one of her sons. Id. at 286.
Polizzi fully cooperated with the agents, id. at 174, informing them that there was a family computer in the basement; it was seized. Id. at 285. This computer had no forbidden images on it. Id. at 518.
After fifteen to twenty minutes of trying to calm his “extraordinarily upset” wife, Polizzi told the agents there were additional computers in the detached garage. Id. at 276, 746; see id. at 1049. But see id. at 294. Two agents escorted him there, id. at 291-96; the two others remained behind with Polizzi’s family to “make sure [his wife] was okay.” Id. at 296.
On the staircase leading up to the rooms on the second floor of the garage, Polizzi informed the officers that “[t]his is where are [sic] I look at the children.” Id. at 687. It was, he said, himself and not his sons who had downloaded the images. Id. at 313. Polizzi then asked them what could be done to stop the child abuse depicted: “ ‘What are we going to do about this?’ ” Id. at 1367, 1379. Inside the two upstairs rooms — one with two doorlocks and the other with three, to which he alone had keys — he showed the agents the computers they sought. Id. at 145-47, 300, 686.
Polizzi was then questioned by the agents. Upon being read Miranda warnings, id. at 306, he signed two forms stating that he was waiving his rights and was willing to talk without an attorney present. Id. at 309, 312. Polizzi then gave the following statement, which the agents wrote down and he signed at 8:40 p.m. Id. at 156, 305-19.
I, Peter Polizzi, Senior, being duly sworn and deposed says I am 52 years old, having been born on ... [19]53. I live with my family at ..., Glendale, New York, with my family.
I am here giving this statement to Detective Forrestal and Special Agent Danielle Massineo having been made no threats or promises to do so. Some time in February or March, 2005, I received an email in my AOL email account, ppoli.. .@aol.com inviting me to join a website called “Hard Lovers.” It was $79 or $89 to join and I had to use my credit card to join. I used my Master Card from Citibank; it’s in my name. The number is....
After I joined, I would visit ever [sic] couple of days. After I joined, I knew it was a child pornography website. I downloaded pictures and videos from this website. I keep the pictures on my external hard drive that’s a Maxtor 300 gig that I bought new about six months ago. I have another external hard drive that I used and transferred everything over from an external drive that I also bought new.
The computer I used to go to, the ... hard lovers website I had custom made at a computer store on Cypress and Weirfield. I had bought it new about two years ago. It was the black tower where I pointed to the Detective Forres-tal at my desk. I’m not sure how may [sic] child pornography pictures I have but I have a lot. I know I’m a member of the site now and I downloaded this morning. I know I have of a lot. I know I’m a member of the site now and *329 I have Red [sic] something, I don’t remember exactly, it’s in my favorites. I used the same credit card number, the Citi Master Card to join. I don’t send them out, it’s only private. The different passwords of the websites are in my AOL email that I have so I know what they are.
I do have anti-virus software, it’s in my computer, and I’m the only person that uses my computer. I keep it in a locked room upstairs that I only have access to. I have read the above two page handwritten statement and I swear that it is all true.
Id. at 317-18.
Over 5,000 digital images and some motion videos of child pornography (in addition to adult pornography) were found stored on the garage computers and three external hard drives. They had been downloaded over a period of at least four years, id. at 145-46, 349-50; the agents found a list of child pornography search terms dated June 9, 2001.
3. Indictment
Polizzi was later arrested and charged with twelve counts of receipt and twelve counts of possession of sixteen different photos and videos he had downloaded from the Hardcore website. See Arrest Warrant, Jan. 12, 2006, Docket Entry No. 4. The receipt counts charged him with receiving two illicit images on February 20, 2005, two on March 5, 2005, four on March 16, 2005, and four on March 20, 2005. The possession counts charged him with possessing on November 16, 2005, the day his home was searched, twelve prohibited images or videos. He was charged for both receipt and possession of several of the images: Counts One and Twenty were based on the same depiction, as were Counts Three and Eighteen, Four and Nineteen, Seven and Twenty-Three, Eight and Twenty-Four, Eleven and Twenty-One, and Twelve and Twenty-Two. See Superseding Indictment, Docket Entry No. 35. Upon motion by the government, Count Thirteen was later dismissed. See Govt.’s Letter to Dismiss Count Thirteen, Docket Entry No. 62.
Jh Motion to Dismiss Indictment
Defense counsel filed a Motion to Dismiss the Indictment, arguing that child pornography statutes were required to have an element of scienter — whether present in the language of the statute or implied by the courts,
see, e.g., United States v. X-Citement Video, Inc.,
5. Jury Charge
a. Affirmative Defense of Insanity
At trial the only contested issue was Polizzi’s affirmative defense of legal insanity. See 18 U.S.C. § 17. Polizzi admitted collecting child pornography and described at length how and why he began to do so. He contended that his obsessive-compulsive disorder and hoarding behavior, combined with the trauma he re-experienced upon seeing the images of abused children, caused him to reflexively collect child pornography in a misguided attempt to “help the children.” See Part II.B.6.b, infra.
The definition of “legal insanity” thus assumed importance, and, in particular, it raised the question of defendant’s ability to appreciate the wrongfulness of his acts. The parties’ proposed jury instructions on the issue were sharply contrasting. The court issued its own charge, to which there were no objections. See United States v. Polizzi 545 F.Supp.2d 270 (E.D.N.Y.2008).
b. Mandatory Minimum Sentence
Before, during, and after trial, defense counsel repeatedly sought to have the jury informed of the five-year mandatory minimum sentence applicable to the receiving counts and objected to the lack of such an instruction.
See, e.g.,
Def.’s Letter, Sept. 7, 2007, Docket Entry No. 71 (“I do wish that the Court informs the jury of the statutory minimum and maximum sentences. I would leave it to the Court’s discretion as to the most appropriate time to inform the jury.”). The government opposed, arguing that a 2004 decision by the Court of Appeals for the Second Circuit,
United States v. Pabon-Cruz,
Given the proximity to trial and the parties’ need to prepare sufficiently in advance, the court issued its decision from the bench denying Polizzi’s motion. In light of
Pabon-Cruz,
Counsel for the defendant then requested an alternative instruction informing the jurors simply that a guilty verdict would necessarily result in imprisonment. It was also denied. Id. at 20 (“I would suggest, your Honor, that even instructing the jurors that there is a potential for prison or that there’s a likelihood of imprisonment ....”); see also id. at 19 (“I would just say that ... I’ve read the [Pabom-Cruz ] case and I understand the Court’s feelings about it, is that I think it’s very important for the Court to — for the jurors to understand the seriousness of the charges”). Granted instead was the government’s in limine motion precluding any discussion by counsel of the mandatory minimum or maximum terms of imprisonment and the consequences of a verdict of legal insanity. Id. at 3.
At the close of the government’s case, defendant’s Rule 29 motion to set aside the verdict was denied. Trial Tr. 717; see Fed.R.Civ.P. 29. Rejected as well was defendant’s motion at the close of the evi *331 dence to dismiss based on an insufficient prima facie case. Trial Tr. 1329.
The jury was not informed before rendering its verdict of the sentence a conviction on the receiving counts entailed. It was specifically instructed that it should not consider sentencing when deciding on a verdict. See Jury Charge 21 (“The question of possible punishment of the defendant is of no concern to you and should not enter into or influence your deliberations. The duty of imposing sentence rests with the court.”).
After trial, defendant renewed his objection to the court’s decision not to grant the “defense request to present the jurors with information regarding the statutory minimum sentence in light of the Second Circuit opinion in
United States v. Pabon-Cruz,
Since the advent of mandatory minimums, it can no longer be assumed that jurors are aware of the consequences of a guilty verdict.... The mandatory minimum can be communicated quickly and clearly in a brief sentence and it makes sense to protect the defendant from an undeserved draconian term.... To properly perform their role, jurors should be thus informed, when applicable, that a minimum sentence is mandated upon their finding of guilt.
Def.’s Mot. to Vacate J. 25-26, Docket Entry No. 123.
6. Trial
At trial, defendant’s knowing receipt and possession of the pornographic images and the fact that the images depicted minors engaging in sexually explicit conduct were not disputed. The still photos and moving video were shown to the jury in brief flashes on a courtroom screen to avoid unnecessary prejudice.
To satisfy the federal Insanity Defense Reform Act (“IDRA”), Polizzi had to prove by clear and convincing evidence that he was legally insane when the offenses occurred: that he 1) had a severe mental disease or defect at the time he received and retained the images; and 2) as a result he had been “unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 U.S.C. § 17.
Focusing on Polizzi’s childhood sexual abuse through his testimony, the defense emphasized the abuse’s lasting psychological effects as manifested in his post-traumatic stress and obsessive-compulsive disorders. Defendant contended that when he first accidentally came across the child pornography, he had re-experienced his own abuse and obsessively began to collect as many photos as he could — to help the children. Trial Tr. 1069-70 (“I have been collecting, the material that I’ve been collecting, every time I was on the internet, collect anything I find that was not appropriate to see it [sic], in my opinion should not be there, I save all of them, all the materials I come across.”). According to defense counsel,
Mr. Polizzi was doing what he believed to be right. He could not appreciate that downloading pictures of the children was wrong. What is wrong, what Mr. Polizzi knows is wrong ... is child abuse.... Mr. Polizzi, in a wrong way maybe, but in his way because of his psychological trauma, is trying to figure out a way to stop child abuse.
Id. at 1368; see id. at 782.
Two defense experts, Dr. Eric Goldsmith and Dr. Lisa Cohen, testified as to Polizzi’s mental condition. Dr. Naftali Garcia Berrill provided expert evidence in rebuttal for the government. Their opinion on whether Polizzi was “legally insane” *332 was not permitted. See id. at 1215-16; Fed.R.Evid. 704(b) (“No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.”). The experts, however, were permitted to opine on whether Polizzi “did or did not have the defect or disease relied upon as a defense.” Jury Charge 19.
a. Polizzi’s Testimony
Polizzi credibly testified without contradiction and in detail to the severe sexual abuse he had suffered in Sicily as a child. His distress in reliving the events was evident. A recess was required several times when he broke down while he was on the stand. Trial Tr. 1047; see id. at 959, 998. When the first charged photo was shown to the jury, Polizzi suffered an acute anxiety attack and was taken by ambulance to a hospital. Id. at 397-99. The trial continued the following day. To avoid another breakdown, Polizzi removed himself from the courtroom while the sixteen images of child pornography were shown to the jury. Id. at 405.
Polizzi testified that he had originally learned of Internet child pornography accidentally, in 2001 or before, through a “pop-up” while visiting an adult pornography website.
Id.
at 1046. “ ‘Pop-up’ windows are windows containing notifications or advertisements that appear on the screen, usually without any triggering action by the computer user.”
1-800 Contacts, Inc. v. WhenU.com,
The images, he testified, shocked and horrified him. See Trial Tr. 1178, 1230. Seeing such graphic depictions reminded Polizzi of being raped and molested in Sicily. Id. at 1046 (“Oh, boy. I see my childhood, the event of the abuse happened over and over.”). Strangely, he believed he might be able to find a photograph of himself: “Oh, my God. When I used to see this material I used to see myself in there, I look for my picture and my uncles [sic].” Id. at 1048.
He said he knew that child pornography was wrong, but he believed the online images were legal. Had they been illegal, he reasoned, such “garbage” would not be available on the Internet. Id. at 1105. Hence he had used his real name, email address, street address, and credit card number to pay the membership fee to join Hardcore. Id. at 152, 276, 317, 368. Despite the fact that many websites themselves cautioned that their material “was not legal in many countries,” id. at 155, 253, he contended that he had not understood that his acts — the downloading of the pictures — were wrong. Id. at 1090. He said one reason for his downloading was to stop other children from being abused as he himself had been abused. Hence his first statement to the FBI agents was, ‘“[w]hat are we going to do about this?’ ” Id. at 1367, 1379. What he meant by that question, he later explained, was that
[Wjhoever put this kind of material in there should be brought to justice because this is not right, because no one close to me should not have cause [sic] to others, because my life all the fear, all the nightmares, and everything else involved comes from this, and if it’s nothing be done [sic] about this, a lot of innocent children will be raped because of this.
Id. at 1050.
Notwithstanding his desire to stop the depicted abuses, Polizzi never voluntarily *333 informed law enforcement or anyone else of his collection. See id. at 858, 1138, 1180, 1309. Polizzi asserted that he did not trust the police on such matters after his experiences with the Italian carabinieri. Id. at 1048. He could not go to the police because of “[m]any reason [sic]. The reason that I was abused in [sic] this carabini-eri, which in this country mean the uniform of the police. Second, oh, boy, I been — I was at gun point by police.... ” Id.
Polizzi also knew that if he “share[d] that information I would tell my even [sic] sickness, which I kept for 45 years and I could not.” Id. at 1047. In order to explain why he had collected the photos, he would have to reveal his childhood sexual abuse, something he felt was impossible.
45 years it’s inside of me, this has been like something unexchangeable [sic], only people that went through this, what this come from or what this causes and where you go from this. This is something that you keep inside because you cannot share with anybody because it’s very, very, very awful thing to share with anybody and I don’t wish my worse [sic] enemy what happened to me, why because is [sic] this is wrong.
Id. at 1062. When the FBI showed up in his driveway, Polizzi said he was relieved.
[I]nside I had the feeling of joyness. Why? Because finally the stuff that I have turn it over or say to the police ... they will find it there. To me it was a kind of relief. I also said because now that they find out I have to tell my secret, which was very hard because now finally my wife know [sic] I had secret.
Id. at 1048-49. Even after his arrest Pol-izzi did not immediately disclose his childhood sexual abuse to the police or anyone else. Not until six months into his post-arrest counseling ordered by Pretrial Services did he speak with a therapist about his childhood experiences, after learning of a woman who had spoken to her family about similar abuses with positive results. Id. at 1054.
When that happen, you know, make me felt [sic] that I was not alone in this, someone else be in the situation that I was, and regarding the information that we share there, by sharing this kind of information it was a kind of relief for her and I thought releasing this kind of information will be the same for me.
Id.
b. Dr. Lisa Cohen
Dr. Lisa Cohen, a clinical psychologist at Beth Israel Hospital conducting research with individuals accused of child sex crimes, was the first expert to testify. Id. at 766-902. She had administered a battery of neuropsychological tests to Pol-izzi and interviewed him twice; she also interviewed one of his sons. Id. at 771, 875. Test results showed that Polizzi had significant “impairment of executive function,” the “collection of cognitive abilities that have to do with being able to use judgment to think in complex ways, to think in flexible ways, to monitor one’s own behavior, impulse control.” Id. at 774. In the four cognitive functioning tests, his scores were quite low — between 0.1 and 10.8 percentile — which Dr. Cohen attributed to possible brain injuries from Polizzi’s car accidents; they also “showed memory problems.” Id. at 773-77, 870. His overall IQ score was considered “borderline range of average intelligence.” Id. at 1280-83. Dr. Cohen also evaluated Pol-izzi using the Yale-Brown Obsessive Compulsive Scale (“YBOCS”), “the standard measure of obsessive compulsive disorder.” Id. at 778.
Dr. Cohen’s final diagnoses were “significant cognitive impairment,” id. at 783, and “obsessive compulsive disorder character *334 ized by severe hoarding” with “limited insight” as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”). Id. at 882, 885. She did not evaluate Polizzi for post-traumatic stress disorder. Id. at 782, 882.
The “severe hoarding” Dr. Cohen identified referred to Polizzi’s extensive and varied collections besides child pornography. In his rooms over the garage, Polizzi had collected and organized tens of thousands of baseball, soccer, hockey, frisbee, and football cards, movies, musical recordings, comic books, stamps, and coins; he had never sold any. Id. at 765, 860, 862; see id. at 900. Polizzi estimated he had 4,500 videos, 10,000 comic books, 10,000 baseball cards, 4,000 CDs, 4,500 coins, 3,000 stamps, 150 boxing cards, and 500 soccer cards. Id. at 888.
According to Dr. Cohen, Polizzi, like other hoarders, did not see his collecting as a problem. See id. at 889. He rationalized that his collections were “a good investment for his children,” id. at 861, and talked with his sons of “one day” opening up a comic book store, id. at 749, 863, or a video store. Id. at 890. It was obvious, the expert declared, that such talk was only a dream; “people who hoard always think that they have a future use for the items that they’re hoarding.” Id. at 889.
Unlike most people with obsessive compulsive disorder (“OCD”) who understand that their actions are not normal, Dr. Cohen found that “Polizzi had no insight into his obsessive compulsive disorder. He seemed to feel that it was all appropriate and reasonable behavior_” Id. at 873.
[N]o matter how many times I tried to explain the concept of obsessions and compulsions it was difficult for him to grasp. And the point of an obsession is that it should not make sense, it should be excessive and inappropriate. So he had a hard time differentiating from what was an appropriate concern and what was an excessive, inappropriate concern.
Id. at 856.
In the face of the government’s repeated insistence that Polizzi’s low cognitive test results were due to his “malingering,” Dr. Cohen declared that she did not find that Polizzi was exaggerating his symptoms. See id. at 789 (defining malingering as “the intentional and conscious flaring of mental symptoms in order to gain what they call secondary gains or primary gains to gain something else.”). Although she did not administer any specific validity tests, id. at 897, 1260, her testing included internal validity components. Id. at 830. Based on her interviews with Polizzi and one son, Dr. Cohen concluded that “if anything, he seemed to be minimizing his problems and that was not in his interest. It would be in his interest to maximize his problems. So, in my mind, he was not trying to manipulate me to present him as sicker than he was.” Id. at 905; see id. at 898.
c. Dr. Eric Goldsmith
Dr. Eric Goldsmith, Polizzi’s expert forensic psychiatrist, testified that he had diagnosed Polizzi with post-traumatic stress disorder (“PTSD”) resulting from the sexual abuse defendant had suffered as a child. Id. at 1130 ff. Of the three experts, Dr. Goldsmith had spent the most time evaluating Polizzi. He had interviewed separately four of defendant’s sons as well as his wife. Id. at 1131; see id. at 1176. Dr. Goldsmith had also prescribed medication for Polizzi’s acute anxiety and PTSD symptoms. Id. at 1174. Medication was necessary, defendant testified,
[S]ince I have this nightmares, a lot of nightmares actually, when you have those nightmares when you have, when you see ... photos so, you know, you smell certain smells, the events come back and I told this nightmare that I have and told me if I slept well, when *335 the time comes, when I go to sleep, I go to sleep very exhausted, because the crime that is involved, you know, the fear, it makes you, it takes everything out of you, which left you with very sadness and no kind of strength.
Id. at 1060.
Dr. Goldsmith corroborated Dr. Cohen’s diagnosis of obsessive compulsive personality disorder as defined in the DSM-IV. Id. at 1134ff., 1186. He also found that Polizzi “has no awareness it is a problem for him.” Id. at 1143. Polizzi was ‘Very very difficult” to interview “because of his obsessive pathology[:] he ... gets stuck on a detail or particular issue and needs to retell the story over and over and over again----” Id. at 1136-37. It required “hours and hours” for Dr. Goldsmith to obtain a medical history.
It is reflective of some significant obsession compulsive pathology. It explains his behavior of just downloading hundreds and hundreds of images. It explains his behavior of collecting thousands and thousands of baseball cards. It explains his routinized behavior, the styling of how he communicates and how it is just obsessive and obsessive and repetitive and repetitive.
Id. at 1139; see also id. at 779 (Dr. Cohen noting the difficulty of interviewing Poliz-zi). The jury had the opportunity to witness defendant’s repetitive oral behavior firsthand on multiple occasions when Poliz-zi was on the stand. Dr. Goldsmith also found that “[h]e has memory problems. He has difficulty in providing really specific information about times and dates. There has been a real problem throughout the course of the interviews with him. He has misinterpretations of statements. Sometimes you would ask him a question, he really doesn’t understand what you are asking him and you have to re-ask it in a different way.” Id. at 1184.
During his first sessions with Dr. Goldsmith, Polizzi did not disclose what had happened to him in Sicily. This was not surprising to the doctor, given “the type of trauma that [Polizzi] experienced,” because of the issues of “humiliation and shame and fear [that] pervade the adult mind” in such a victim of “severe child sexual abuse.” Id. at 1136-37. When informed of the abuse, Dr. Goldsmith found Polizzi credible:
And it is not only what he says, that he was abused, and how he says it, and how he gives it such rich detail, reflective of just a true autobiographical experience that’s so convincing, but what is really convincing about why this is not a malingered post-traumatic condition is all of the clinical factors there follow the trauma and abuse that he could just not make up. It’s the re-experiencing phenomena, the description of the flashbacks. It is not just saying I have flashbacks, but describing what he goes through in showing it to me in the office, when I interview him about this, and how literally his mind and body kind of separate and he begins to just follow like he’s back in the experience that he shows all of this emotion that is just reflective of true experience.
Id. at 1153.
After Polizzi revealed his childhood sexual abuse, Dr. Goldsmith added a PTSD diagnosis, id. at 1157, which is considered a “major mental illness,” based on the DSM-IV definition. Id. at 1257. In Dr. Goldsmith’s opinion, Polizzi “when viewing child pornography on the Internet had a retraumatizing experience. In a regressed and obsessive state he downloaded and searched child pornographic images for evidence of victimization, something he had experienced as a child.” Dr. Goldsmith’s Addendum: Psych. Rep. 1, Jan. 2, 2007.
*336 His ... level of sophistication, the way that his mind operates is again very concrete, extremely unsophisticated, old world ... when he first downloaded all of the information over the internet, he had this very unsophisticated idea, by taking it all down off the internet, it could be off the internet and nobody else could see it. Really just not sensible.... [T]he images overwhelms [sic] him emotionally and overwhelms any kind of rational thought that he had of what he was doing.
Trial Tr. 1162-63. His PTSD, the expert believed, had caused Polizzi to develop OCD: “[T]he obsessive pathology that he experiences, that he has in adult life, is really a way to control everything in his environment so that it doesn’t hurt him.” Id. at 1160.
Of sexual deviance in Polizzi Dr. Goldsmith found no trace. His first report, written before he learned of Polizzi’s child abuse, did hypothesize that Polizzi had “possible low level deviant sexual arousal,” but concluded he “[did] not confer high risk for future dangerous” and did not meet the DSM-IV criteria for pedophilia. Id. at 1150. At trial, Dr. Goldsmith explained why he had initially noted “low level sexual deviancy”: because he had had no other explanation as to why Polizzi collected child porn. Id. at 1151-52.
[I]t seemed to me that the[re] credibly could be — could have been at that time some deviant interest, because individuals who are arrested for these crimes often have a large level of denial and don’t share and admit to their deviance .... At that time Mr. Polizzi was presenting consistent with that and it just didn’t make sense why he clicked on the images.
Id. at 1185. Once he learned of an alternative reason — Polizzi’s childhood trauma — Dr. Goldsmith concluded that Polizzi in fact had no deviant sexual arousal.
In my previous report from June 9, 2006, I speculated that Mr. Polizzi’s past behavior of downloading and viewing child pornography was perhaps related to sexually deviant thinking. However, after further assessment it is my opinion, with a reasonable degree of psychiatric certainty, that Pietro Poliz-zi’s encounter with child pornography elicited a post-traumatic stress reaction. Pietro Polizzi credibly describes how the child pornography pictures triggered memories from the past. Consistent with his compulsive hoarding behavior he downloaded hundreds and hundreds of images. While viewing these images Pietro Polizzi describes it as if he was reliving his own childhood sexual abuse. He looked for signs of forced injuries on the victims and evidence for the perpetrators.
In summary, his behavior of downloading and viewing child pornography is directly related to his history of childhood sexual abuse and obsessive compulsive behavior. The images triggered painful traumatic memories that had been repressed for many years. This behavior was not related to sexually deviant thinking or pedophilia.... Mr. Polizzi does not pose a risk of sexual predatory behavior against children.
Dr. Goldsmith’s Addendum: Psych. Rep. 5, Jan. 2, 2007; Trial Tr. 1169 (“[It’s e]lear in my mind that he’s not a pedophile ... He has no paraphilia [sexual interest in children in general], he has no deviant sexual arousal or interests.”).
Like Dr. Cohen, Dr. Goldsmith did not believe Polizzi was malingering. Even though the doctor was aware that PTSD was frequently faked, Trial Tr. 1195 (noting that PTSD is “the most important area where malingering needs to be considered”), he concluded that “[n]one of the examiners and none of the testing and *337 none of the data from the clinical exam identified that [Polizzi] was malingering.” Id. at 1147.
d. Dr. N.G. Berrill
Dr. Naftali G. Berrill, a board-certified forensic psychologist, testified as the government’s expert. Id. at 1217-1329. Pol-izzi initially attended Dr. Berrill’s clinic for mandatory sex offender counseling as required by Pretrial Services. Id. at 1223. (Through a contract with the Departihent of Probation and Pretrial Services, Dr. Berrill’s private practice assesses many defendants accused of sex offenses. Id. at 1221.) Polizzi participated in group counseling; Dr. Berrill did not treat him. Id. at 1240. Polizzi eventually requested that the court approve his transfer from the clinic to private counseling, citing the trauma he experienced during group therapy with other child sex offenders. It was approved. See Jan. 1, 2007 Order, Docket Entry No. 20.
After Polizzi had filed a notice of intent to raise the insanity defense, Dr. Berrill evaluated Polizzi for an hour at the government’s request and administered several standard tests. One of his associated counselors wrote a report. Trial Tr. 1225, 1277. During his first interview with Dr. Berrill, Polizzi did not disclose his history of child abuse. Id. at 1229. Dr. Berrill later evaluated Polizzi again for an additional four hours during which Polizzi informed him of his past abuse; the doctor then wrote a second report himself, but never spoke with Polizzi’s wife or sons. Id. at 1315.
Dr. Berrill initially diagnosed Polizzi as having an adjustment disorder with anxiety and possibly generalized anxiety disorder. Id. at 1232. Such conditions, in his opinion, “shouldn’t interfere with someone’s ability to think clearly.” Id. at 1233. After the second interview, id. at 1244, his diagnosis remained the same: Polizzi had “no severe mental disease or defect,” id. at 1243, 1246-48, only an “anxiety disorder.” See Dr. Berrill, Psycho-Legal Eval. 20, Aug. 3, 2007.
On the witness stand, the doctor agreed that defendant had some obsessive-compulsive personality disorder “features,” but not OCD itself. Trial Tr. 1255. Having OCD in any event does not prevent a person, in Dr. Berrill’s opinion, “from being [able] to appreciate what they are doing or knowing ... is wrong.” Id.
Dr. Berrill considered Polizzi’s history of child abuse irrelevant because “psychological testing ... did not reveal a post-traumatic stress disorder.” Id. at 1258, 1328. Had Polizzi suffered from PTSD, the doctor believed he would have avoided child pornography, not sought it out. The “criminal behavior” Dr. Berrill typically associated with PTSD, moreover, was an “explosive kind of behavior,” not a prolonged quest. Id. at 1265.
His second report diagnosed Polizzi with “paraphilia” not otherwise specified (sexual interest in children in general), “hebophi-lia” (sexual interest in adolescents), and possible pedophilia (sexual interest in young children). Id. at 1233; see Dr. Ber-rill, Psycho-Legal Eval., Aug. 3, 2007. He gave no reasons for these conclusions in the report. Such diagnoses were appropriate, Dr. Berrill testified at trial, because
Based on one of the tests that we had given and based [on] Mr. Polizzi acknowledging that he was looking at both young kids and adolescents in terms of the child pornography that he collected, number one, the tests results suggested first and foremost he was likely interested in adolescent girls, that is referred to clinically as Hebephilia.... I wasn’t really sure whether he was interested in young children. I really couldn’t tell based on my interview with him. He denied or disavowed an interest in all of this but nonetheless, testing raised some *338 issues about teenagers and the fact that he collected pictures of kids who were younger than 10 raises a distinct possibility that was an area of interest.
Trial Tr. 1233-34.
The doctor was concerned that Polizzi had “provided contradictory information during the evaluation,” id. at 1301, denying all sexual interest in children, yet admitting he had collected child pornography for years. Polizzi had received a low score on the Abel Assessment, a test designed “to ascertain whether or not somebody is sexually interested in kids.” Id. at 1297. He had “not endorsefd] items that reflect the types of rationalization or excuses frequently used by individuals sexually involved with kids,” id. at 1300, but his answers on Dr. Berrill’s Internet activity questionnaire were suspicious. There, Polizzi had checked several boxes indicating he had looked at child pornography “to avoid having sex with children” and “out of curiosity,” which had raised concern in the doctor’s mind. Id. at 1116-18. Dr. Berrill did not explain the questions to Polizzi nor did he ask him why he had marked the boxes. Id. at 1078, 1394.
On the stand, Polizzi described what he had meant by his checkmarks — that he looked at the photos “to avoid [stop] [child abusers from] having sex with kids” — and that he was “curious” to find out how the photos came to be on the Internet, i.e., to find out who was producing them. Id. at 1115-18 (testifying that he had “[c]uriosity what was up there, what was on that box. Why this was over there. Why this material. It is a lot of do you understand there’s a lot of material, understand where this comes from, whose behind this, the curiosity, you know, why are they doing this.”).
Although Dr. Berrill never mentioned malingering specifically in either of his reports, at trial he testified at length about Polizzi’s possible exaggeration of his symptoms. Id. at 1248ff., 1322 (“I am not sure I said he was malingering. I said one has to imagine that that is a possibility.”). The doctor pointed out that Polizzi’s second MMPI-2 diagnostic test included several true-false answers reporting paranoid or delusional symptoms, which Polizzi had not reported on his first test a year before. Id. at 1251, 1327, 1253 (“[I]t raises the specter of, you know, Mr. Polizzi trying to exaggerate some of the symptoms he’s having right now. He’s exaggerating the level of distress or exaggerating the kinds of problems he is encountering.”). Dr. Berrill did note that Polizzi had never complained of any delusions or hallucinations. Dr. Berrill, Psycho-Legal Eval. 18, Aug. 3, 2007. Because Dr. Cohen had not conducted any independent validity testing, Dr. Berrill considered her cognitive testing results “worthless.” Trial Tr. 1260.
Dr. Goldsmith rejected those malingering-related concerns cited by Dr. Berrill. That Polizzi had answered a few multiple-choice questions in odd ways was irrelevant: “you can’t take one question from 567 questions and make anything of it.” Id. at 1211. Such multiple-choice tests “are not great at detecting PTSD,” Dr. Goldsmith warned, “but they have some symptomatology that ... can come out with PTSD.” Id. at 1205. Such tests were certainly not “substitute^] for psychotherapy or psychiatric evaluations.” Id. at 1211. To Dr. Goldsmith it “ma[de] perfect sense” that some of Polizzi’s answers had changed over the course of the year; his PTSD symptoms had recently worsened because “as he tells the story, as he exposes the trauma ... that is when all of the symptoms come up, and that’s when the nightmares come about.” Id. at 1204. Polizzi “was not experiencing the active symptoms of post-traumatic stress disorder in May of 2006, when he first took the MMPI-2. While taking the second *339 MMPI-2 a year later, he was in the [midst] of a severe PTSD condition, talking about this with myself and other examiners, Dr. Berrill, bringing up all the active symptoms.” Id. at 1212.
7. Jw'y Verdict
The jury found Polizzi guilty on all counts. During jury deliberations, it was evident from the questions it sent through the marshal that the jury had rather quickly decided the issue of guilt. Determining whether Polizzi had carried his burden of proving legal insanity took the jury several days during which jurors reviewed the exhibits concerning Polizzi’s mental condition. Id. at 1439.
The jury ultimately rejected Polizzi’s defense of legal insanity. It was justified in doing so. Despite defendant’s mental problems, a jury could find that he was able to appreciate the nature and quality and the wrongfulness of his acts (i.e., downloading and possessing images of child pornography). See 18 U.S.C. § 17. At the time he obtained and viewed the images, Polizzi testified, he believed he was not violating the law or morality. Once he was told his actions were illegal, he understood they were wrong. See Trial Tr. 1047, 1105 (“Now I know it’s wrong, but back then I didn’t — I didn’t know it was wrong”); id. at 667 (“When we [the police] explained the circumstances to him of what possessing child pornography was, what it actually meant, he was remorseful. He understood that it isn’t just possessing pictures, we spoke to him about that. It wasn’t just having these images and looking at them that, it was damaging children and he became remorseful.”). Because “[i]gnorance of the law is no excuse,” Jury Charge 9, defendant’s mental problems did not support a verdict of not guilty by reason of insanity.
8. Post-Verdict Proceedings
After the jury was discharged, members of the jury — all of those jurors who spoke when invited to do so by the court — acknowledged the defendant’s mental illness, recognized his need for mental health treatment, and felt that imprisonment was inappropriate in his case. See Trial Tr. 1454-59. Upon being informed by the court that Polizzi would mandatorily be subject to at least five.years’ imprisonment, see 18 U.S.C. § 2252(b)(1), the jurors who evinced an opinion declared they would have voted to find the defendant not guilty by reason of legal insanity — causing at least a mistrial — had they known of the mandatory minimum. They wanted treatment and close supervision to prevent a recurrence, not a long prison term.
THE COURT: You [the jury] are discharged. However, stay here for a moment, please.
I know this has been a difficult case for you, and some of you are nodding, and you 'don’t have to answer the questions I’m going to put to you, but it might be helpful. Just answer, if you want to answer as to yourself, not as to what anybody else said, because everybody is entitled to privacy.
Now, the Supreme Court of the United States has suggested that for constitutional reasons th[at] juries participate much more heavily in the sentencing, although the sentencing does not suggest in any way how you should decide. As I told you, in considering your verdict, you should not consider that. I will do the sentencing, not you. You all recall that?
However, because these are somewhat difficult cases, and they do involve to some extent the morality and the views of the community, it might be helpful, if you wish, to indicate what you think under these circumstances that you have heard here, the penalty for a person like this defendant might be, in terms of incarceration or other punitive aspects.
*340 Do you have any view, juror one?
JUROR NO. 1: No.
THE COURT: Two?
JUROR NO. 2: No.
THE COURT: Three?
JUROR NO. 3: No.
THE COURT: Four?
JUROR NO. 4: No.
THE COURT: Five?
JUROR NO. 5: No.
THE COURT: Six?
JUROR NO. 6: No.
THE COURT: Seven?
JUROR NO. 7: No.
THE COURT: Eight?
JUROR NO. 8: No.
THE COURT: Nine?
JUROR NO. 9: [sic].
THE COURT: Ten?
JUROR NO. 10: Yes, I do.
THE COURT: What’s your view?
JUROR NO. 10: My view is that if it is at all possible — and I don’t know if it is — I see no useful purpose to have Mr. Polizzi confined. I believe that there should be an alternative, if possible, other than confinement.
THE COURT: What would that alternative be?
JUROR NO. 10: Treatment.
THE COURT: Compulsory treatment?
JUROR NO. 10: Oh, absolutely.
THE COURT: Juror eleven?
JUROR NO. 11: I agree with him.
THE COURT: You agree with juror ten?
JUROR NO. 11: Yes.
THE COURT: Juror twelve?
JUROR NO. 12: No.
THE COURT: You prefer not to speak?
JUROR NO. 12: Yes.
THE COURT: Now, as we discussed during the earlier preparation for the case a problem that doesn’t arise very frequently, and that’s what’s called jury nullification. The power of a jury, if it doesn’t like a rule of law, to ignore the instructions and just acquit, or, conversely, to convict for a higher [sic] crime. That’s called nullification, and the judge is not permitted and should not suggest to the jury nullification. In fact, I told you, you have to follow the law. You remember that?
THE JURORS: Yes.
THE COURT: But some jurors do under some circumstances we believe nullify.
Now, the question comes up in this way: Had you known that the penalty was five to 20 years, a minimum of five, maximum of 20, probably concurrent, not times 20, but for the total, would that have affected the verdict of any of you, raise your hands?
MR. BODE: I object, your Honor.
JUROR NO. 9: Yes, I also feel that incarceration would not serve in this case. I think the gentleman should receive treatment, compulsory, but that he should definitely receive treatment. I don’t think justice is served for incarceration.
THE COURT: Would your verdict have been affected if you knew that there was a minimum of five years imprisonment?]
JUROR NO. 9: Yes.
THE COURT: How would it have been affected?
JUROR NO. 9: Under all the circumstances, I would have probably gone not guilty by reason of insanity.
THE COURT: Anyone else?
JUROR NO. 2: I would have done the same.
*341 THE COURT: You would have found him not guilty, if you knew what the total punishment was.
Anyone else wish to speak? Juror eleven?
JUROR NO. 11: I would not. I would have found him [not] guilty by reason of insanity.
THE COURT: You would have nullified, if you knew what the punishment was.
Do any of you wish to say anything else about this case? I know it was very difficult and I do want to thank you. I know you gave it a great deal of attention.
JUROR NO. 7: I also believe that Mr. Polizzi should not be incarcerated. I believe that mental health treatment should be the proper verdict for Mr. Polizzi.
Trial Tr. 1454-59. Defense counsel reports that he spoke with two of the jurors, Jurors No. 9 and No. 11, by telephone after the verdict and that they indicated to him there was nearly universal support among the jurors for a non-jail disposition for Mr. Polizzi due to the unique circumstances of his case. Def.’s Mem. of Law Regarding the Sentencing of Peter Polizzi 3 n. 2, Feb. 18, 2008, Docket Entry No. 127; Def.’s Letter 2 n. 3, Dec. 5, 2007, Docket Entry No. 114.
Pursuant to 18 U.S.C. §§ 3143(a)(2), 3142(f)(1)(A), and 3156(a)(4)(C), which require remand to await sentencing, defendant has been incarcerated without bail since the jury verdict.
Post-verdict, further briefs and oral argument on the Rule 33 motion for a new trial were presented. See Def.’s Mot. to Vacate J., Docket Entry No. 123; Govt.’s Br., Mar. 14, 2008, Docket Entry No. 134. The scienter issues were also thoroughly explored by the parties. See Govt.’s Br. at 2-6; Def.’s Letter Br., Mar. 14, 2008, Docket Entry No. 135.
III. Constitutional Objections to the Statute
A Fundamental Problem with Passive Receiving and Possessing Without Evil Intent as Charged Under Statute
1. Generally
The provisions Polizzi is charged with violating and found guilty of are 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). Sections 2252 and 2252A of Title 18 are functionally the same; both criminalize “knowingly” receiving or possessing child pornography, among other child pornography crimes.
Compare
18 U.S.C. § 2252(a)(4)(B)
with
§ 2252A(a)(5)(B);
compare
18 U.S.C. § 2252(a)(2)
tvith
§ 2252A(a)(2). Section 2252 was originally enacted in 1978, Pub.L. No. 95-225, § 2(a), 92 Stat. 7 (1978), as part of the Protection of Children Against Sexual Exploitation Act of 1977, the first federal statute prohibiting the use of children in pornographic materials. Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-52, 2256 (2006)). Section 2252A was added to Title 18 by Congress as part of the Child Pornography Prevention Act of 1996 and included expanded provisions concerning virtual child pornography, which were struck down as unconstitutional in
Ashcroft v. Free Speech Coalition,
*342 An analysis of the operational elements of sections 2252(a)(2) and (a)(4)(B) suggested constitutional issues serious enough to necessitate the additional briefing requested by the court. See Ct.’s Order for Additional Briefing, Feb. 12, 2008, Docket Entry No. 125 (requesting assistance in preparation for ruling on defendant’s Rule 29 and Rule 33 motions); Govt’s Br., Mar. 14, 2008, Docket Entry No. 134; Def.’s Br., Mar. 14, 2008, Docket Entry No. 135.
The provisions may be void for vagueness and overbreadth because they appear to potentially criminalize innocent conduct. By its terms, the statute requires only knowledge, not intent. “[T]he government [is] only required to prove that [defendant] knowingly — not willfully — received or possessed the images.”
United States v. Irving,
The statute’s potential to criminalize benign conduct arises in the Internet context for computer-based crimes of possession and receipt. For traditional crimes of receiving and possessing (such as of drugs or stolen goods), proving knowledge is normally sufficient to establish scienter; you know, before you accept a packet of cocaine or a box off the back of a hijacked truck, that you are committing a crime by lifting up your arms, receiving, and taking possession. In contrast, defining Internet-facilitated computer “possession” and “receipt” as all-encompassing boundaries of criminality becomes conceptually challenging since the forbidden objects are bits of data in electromagnetic form that can be transferred instantaneously and automatically by wire or wirelessly, and stored automatically in a multitude of places and in various electronic forms.
Knowledge of the illegal nature of the contents of the electronic data may be obtained simultaneously with receipt or be acquired at a later time. Once child pornography images are viewed, the computer user knows he or she has received the pictures and knows he or she now possesses them, even if they were never sought or wanted. The danger that the statute criminalizes innocent conduct — accidental or unintentional receipt and possession — is grave, and the penalties steep.
Polizzi objected to the statute’s lack of scienter in his pretrial Motion to Dismiss the Indictment. See Def.’s Mot. to Dismiss Indictment 1, Apr. 5, 2007 (“[T]he instant prosecution violates the United States Constitution because it seeks to prosecute defendant without the necessity of a culpable mental state or scienter requirement”). His motion was based on the argument that his mental condition had caused there to be “no knowing or volitional action [his] part.” Id. at 10. That ground is different from the one now being discussed.
More to the point, he now contends that the passivity of the statutory requirements presents a potential constitutional pitfall.
See
Def.’s Br. 2, Mar. 14, 2008. Citing
United States v. X-Citement Video, Inc.,
Appellate court precedent reading criminal intent or an equivalent into the statute as a basis for approval appears to preclude this court from ruling the statute unconstitutional as applied and facially.
See, e.g., X-Citement Video, Inc.,
2. Definitions
As a preliminary matter, several technical words should be defined. Online child pornography (or any other electronic image) is typically received and viewed via email, downloading, or file sharing, or viewed on an Internet website. Unwanted or unsolicited emails, popularly termed “spam,” are transmitted daily in the billions.
See United States v. Kelley,
Opening files — whether received by email or available on a website — in order to view the images may be automatic or manual. Files deliberately downloaded from the Internet and intentionally saved by the user should be distinguished from files automatically stored by the web browser in temporary cache files.
See generally
Ty E. Howard,
Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based On Images Located in Temporary Internet Files,
19 Berkeley Tech. L.J. 1227 (2004). “The term ‘downloading’ generally refers to the act of manually storing a copy of an image on the hard drive for later retrieval.”
United States v. Romm,
While you surf the Internet, the computer’s “web browsers keep copies of all the web pages that you view, up to a certain limit, so that the same images can be redisplayed quickly when you go back to them.” Id. at 993 n. 1 (quoting Douglass Downing, et al., Dictionary of Computer and Internet Terms 149 (Barron’s 8th ed.2003)). It is possible for sophisticated computer users to access and even “delete” the automatically stored internet cache files, but computer forensic experts are often able to discover any files so deleted. See Howard, supra, at 1228; Steve Silberman, The United States of America v. Adam Vaughn, Wired News, Issue 10.10, Oct. 2002, at 3 (“If your computer is searched, even files that have been *344 dragged to the trash or cached by your browser software are counted as evidence. Some offenders have been sent to jail for ‘possessing’ images that only a computer-forensics technician can see.”). But cf. 18 U.S.C. § 2252(c) (providing for the limited affirmative defense discussed below).
For those concerned with protecting themselves or their families from inappropriate online material either from unsolicited emails or Internet websites, there is no effective way a computer user can block or screen all illicit images that are on, or can be sent through, the Internet. Fully protective technology does not exist. As Justice Stevens pointed out in 2003,
The unchallenged findings of fact ... reveal fundamental defects in the filtering software that is now available or that will be available in the foreseeable future. Because the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images. As the District Court explained:
[T]he search engines that software companies use for harvesting are able to search text only, not images. This is of critical importance, because [the challenged statute] covers only “visual depictions.” Image recognition technology is immature, ineffective, and unlikely to improve substantially in the near future. None of the filtering software companies deposed in this case employs image recognition technology when harvesting or categorizing [web site addresses]. Due to the reliance on automated text analysis and the absence of image recognition technology, a Web page with sexually explicit images and no text cannot be harvested using a search engine. This problem is complicated by the fact that Web site publishers may use image files rather than text to represent words, i.e., they may use a file that computers understand to be a picture, like a photograph of a printed word, rather than regular text, making automated review of their textual content impossible. For example, if the Playboy Web site displays its name using a logo rather than regular text, a search engine would not see or recognize the Playboy name in that logo.
Given the quantity and ever-changing character of Web sites offering free sexually explicit material, it is inevitable that a substantial amount of such material will never be blocked. Because of this “underblocking,” the [challenged] statute will provide [consumers] with a false sense of security without really solving the problem that motivated its enactment. Conversely, the software’s reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages that “contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies’ category definitions, such as ‘pornography’ or ‘sex.’ ”
United States v. American Library
Association,
Inc.,
*345 A year later in Ashcroft v. American Civil Liberties Union> Justice Breyer repeated Justice Stevens’ concerns:
Filtering software, as presently available, does not solve the “child protection” problem. It suffers from ... serious inadequacies that prompted Congress to pass [other] legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornography material to pass through without hindrance.... [T]he software alone cannot distinguish between the most obscene pictorial image and the Venus de Milo. No Member of this Court [has] disagreed [with this proposition],
[S]oftware blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable.... The software “is simply incapable of discerning between constitutionally protected and unprotected speech.” It “inappropriately blocks valuable, protected speech, and does not effectively block the sites [it is] intended to block.”
Nothing in the District Court record suggests the contrary. No respondent has offered to produce evidence at trial to the contrary. No party has suggested, for example, that technology allowing filters to interpret and discern among images has suddenly become, or is about to become, widely available. Indeed, the Court concedes that “[filtering software, of course, is not a perfect solution to the problem.”
Ashcroft v. ACLU,
Despite advances in technology, fully effective anti-child pornography software would probably have to eliminate all visual images, excluding content subject to First Amendment protection; otherwise, it would allow some forbidden material to get through. See extensive literature on screening to protect children using computers, e.g., Cheryl B. Preston, Zoning the Internet: A New Approach to Protecting Children Online, 2007 B.Y.U. L.Rev. 1417; Heidi Wachs, Note, Permissive Pornography: The Selective Censorship of the Internet Under CIPA 11 Cardozo Women’s L.J. 441 (2005); Jared Chrislip, Filtering the Internet like a Smokestack: How the Children’s Internet Protection Act Suggests a New Internet Regulation Analogy, 5 J. High Tech. L. 261 (2005).
3. Operative Elements of the Receipt and Possession Statutes
It is only the operative words of the indictment and statute, the elements of the crime, and the operative facts constituting the criminal offense so defined that count in determining guilt, not what actually happened. Under what is sometimes called the “ ‘categorical approach,’ ” a court “look[s] to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.”
Wala v. Mukasey,
[We] employ the “ ‘categorical approach’ ” that this Court has taken with respect to other offenses.... Under this approach, we “ ‘look only to the fact of conviction and the statutory definition of the prior offense,’ ” and do not generally consider the “particular facts disclosed *346 by the record of conviction.” Shepard v. United States,544 U.S. 18 , 125 S.Ct. 1254,161 L.Ed.2d 205 (2005) (quoting Taylor [v. United States,495 U.S. 575 , 602,110 S.Ct. 2143 ,109 L.Ed.2d 607 (1990)]). That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.
The phrases “categorical approach,” “operative facts,” “elements of the offense,” “fact that is of consequence to the determination of the action,” and “essential elements of guilt” are used in describing a principle fundamental to American criminal law: the elements of a criminal statute cannot be expanded or narrowed by adding or subtracting from the operative elements of the offense. In
Olah,
the eminent expert on criminal practice, Judge Stanley H. Fuld, put the matter succinctly: “[T]he crime, i.e., the operative facts which constitute the criminal offense as defined by the statute, cannot be extended or enlarged by allegations in the indictment or by evidence at trial.”
Evidence which does not tend to prove or disprove an operative fact is not relevant. As Rule 401 of the Federal Rules of Evidence puts the matter:
Rule 401. Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Fed.R.Evid. 401. If evidence is not relevant, it is not admissible. See Fed.R.Evid. 402.
The crime must be clearly defined by the words of the statute since people are entitled to an essential protection of due process: notice of what are criminal acts.
See, e.g., Chicago v. Morales,
The operative elements of the charged statutes are discerned by reading the provisions. Section 2252(a)(4)(B) of Title 18 of the United States Code, prohibiting possessing, provides as follows:
(a) Any person who—
(4)(B) knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if—
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct
[shall be punished as provided in subsection (b) of this section].
18 U.S.C. § 2252(a)(4)(B) (emphasis added); see also 18 U.S.C. § 2252A(a)(5)(B).
Beyond the existence of matter containing child pornography images and an interstate nexus, the operative words are “knowingly possesses.” Only knowledge of possession is required, not intent to possess. Thus, the words “and intentionally” in Polizzi’s indictment were surplusage. See Superseding Indictment 3, Mar. 8, 2007, Docket Entry No. 35 (“[D]id knowingly and intentionally possess matter containing visual depictions, to wit: the images depicted in the following computer files....”).
Once a computer receives an illicit image by any method, whether spam email, intentional downloading, loading of a CD-ROM, file sharing, etc., the computer user possesses “matter” containing child pornography, even before viewing the electronic screen. The images are in the computer and available for viewing. When he or she intentionally or unintentionally sees the child pornography pictures, the user “knowingly possesses” them — even if the images were unsolicited, unwanted, or a complete surprise. The possession charged is purely passive.
Section 2252(a)(2) covers the receiving counts charged. It reads as follows:
(a) Any person who—
(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
18 U.S.C. § 2252(a)(2) (emphasis added); see also 18 U.S.C. § 2252A(a)(2).
Section 2252(a)(2) may be violated by any one of the following three forms of conduct or misconduct — 1) knowing receipt; 2) knowing distribution; or 3) knowing reproduction of the prohibited visual depictions. The second and third can be assumed for the purposes of the present case to require affirmative action by the defendant.
The first, knowing receipt — the key operative element of one of the provi
*348
sions Polizzi is charged with violating— does not, by its terms, require illicit action by the defendant. It does not have as a requisite that the defendant sought the information. As in the possession charge, the words “and intentionally” in Polizzi’s indictment are superfluous.
See
Superseding Indictment 1, Docket Entry No. 35. When “the government [is] only required to prove that [defendant] knowingly — not willfully — received or possessed the images,”
Irving,
Knowing receipt can be as passive as knowing possession in the computer context. For example, if a person is emailed an unsolicited prohibited visual depiction, when he logs on and opens his email, he “receives.” If the person is already logged on to his email and his computer opens his email automatically, he “receives” without taking any action. As soon as he sees the child pornography, he knows he has received it and that he now possesses it.
See
Recent Cases,
Fourth
Amendment—
Search and Seizure
— Ninth
Circuit Upholds Issuance of Warrant Based on Email Recipient List
— United
States v. Kelley,
Section 2252 does provide in part for an affirmative defense or “safe harbor” for some accidental or unintentional situations:
It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant—
(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.
18 U.S.C. § 2252(c); see also 18 U.S.C. § 2252A(d) (same, for charges of possession under section 2252A(a)(5)). But this affirmative defense is applicable only to a charge of possession of child pornography under section 2252(a)(4). It is no defense at all to receipt of child pornography as defined by section 2252(a)(2).
Putting aside the lack of an effective factual or legal defense against receipt, what if you open, without knowing in advance its contents or having sought it, a digital file which includes three thumbnail-sized images advertising a child pornography website? You now knowingly possess more than two illegal images that you nev *349 er wanted — and section 2252(c)’s safe harbor offers no protection, even if you try to destroy the pictures or want to report them to the police.
Or suppose you are conducting an automatically recorded video-teleconference or viewing a live internet broadcast. The person at the other end, unrequested, flashes a series of pornographic pictures of children. Have you committed a crime by receiving? Do you commit a crime of possession by keeping the videotape or not throwing out your computer? Destroying such tapes, pictures, or flies after the event will not avoid guilt — since the crime has arguably already been committed by receipt and possession. Smashing the computer in outrage at the images would support an obstruction of justice charge for destroying evidence. Cf. Daniel M. Gitner & Gabrielle S. Friedman, Must a Firm Report Child, Pom on a Company Server?, N.Y.L.J., Nov. 15, 2007, at 4 (“While there is no explicit ‘duty to report’ spelled out in a statute, as a practical matter, not reporting means either (a) knowingly hanging on to the images, which is a felony, or (b) destroying the images without telling anyone. While option (b) ... might sound like a good idea, it is not so simple. Not only is it difficult to completely remove images from a computer, but trying to do so could (and likely will) be interpreted as concealing the felony committed....”). As one FBI agent put it, “One click, you’re guilty. A federal offense is that easy.” Silberman, supra, at 3.
A person has not done anything “morally wrong,” or had “an evil intent,”
X-Citement Video, Inc.,
A X-Citement Video
That the statute as written lacks sufficient scienter to ensure violators had a relevant “intent” raises the specter of its facial unconstitutionality. See Def.’s Letter Br. 2, Mar. 14, 2008, Docket Entry No. 135 (“[T]he possibility that a defendant who had not actively sought prohibited visual depictions might still be convicted of knowingly receiving child pornography under § 2252(a)(2) ... presents a potential pitfall to the statute’s constitutionality.”). Insufficient scienter poses a due process problem and a basis for deeming the statute void for vagueness and overbreadth.
In
X-Citement Video, Inc.,
Section 2252 prohibits any person from “knowingly” dealing in visual depictions of minors engaging in sexually explicit conduct.
See
18 U.S.C. § 2252. While “knowingly” expressly modifies the prohibited actions of transporting, receiving, distributing, etc., it does not, based on the “most grammatical reading of the statute,”
X-Citement Video,
Citing the “anomalies which result from this construction,”
id.
at 68-69,
Like the criminal statutes at issue in
Staples v. United States,
Only narrow types of crimes, generally limited to “public welfare offenses,” may omit mens rea. But,
[Section] 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film [or emails or Internet pages] are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common-law offenses against the “state, the person, property, or public morals,” Morissette [342 U.S. 246 , 255,72 S.Ct. 240 ,96 L.Ed. 288 (1952) ], that presume a scienter requirement in the absence of express contrary intent.
X-Citement Video,
5. X-Citement Video Does Not Control
Although in 1994
X-Citement Video
did save the statute as it was being applied from being found facially unconstitutional, the expanding use of the Internet since then requires further analysis. The criminal act in
X-Citement Video
was the
mailing
across state lines of pornographic videotapes featuring an actress recently exposed as having been underage at the time the videos were made.
See
The failure of knowledge to constitute sufficient mens rea for computer-based crimes is intimately tied to the fact that the very definitions of “receipt” and “possession” become vague when dealing with electronic matter transmitted over the Internet. See, e.g., Howard, supra, at 1272 (“It is not difficult to imagine cases where the wrong conceptual approach could result in over- or under-inclusiveness, especially as technology continues to evolve.”). Designed and long used for crimes of physical property (such as drugs, stolen watches, or pornographic videotapes) where mens rea is evident, “receipt” and “possession” do not necessarily require scienter in a world where email may be automatically received, files can instantaneously download themselves, web pages shown for only a fraction of a second are automatically stored, and knowledge can first be acquired after the fact of receipt. See, e.g., Fourth Amendment, 121 Harv. L.Rev., supra, at 1265-66 (comparing the ease of unwitting receipt by email with the “very low” “likelihood that a person will unintentionally receive contraband drugs from a dealer he meets,” and advocating that, for probable cause determinations, courts should distinguish the passive receipt of (potentially spam) email messages from reciprocal online interactions).
Judicial confusion over what exactly constitutes computer-based “possession” and “receipt” is evident from a brief perusal of other child pornography cases. Does looking at online child pornography, for instance, automatically entail possession? Receipt?
See United States v. Perez,
Because it involved mailing and was rendered before the Internet became ubiquitous and online child pornography was regularly prosecuted, X-Citement Video does not control the instant case. A knowledge element is normally sufficient, as it was in X-Citement Video, to establish mens rea when dealing with physically palpable objects. For the particular computer crimes of receipt and possession of electronic files, a mens rea element of more than mere knowledge is constitutionally required because of the evanescent, ephemeral nature of the images and technology. See generally Zappen, supra (dangers from inadequate statutory definitions of requisite scienter arising from technologically inadvertent but innocent behavior in use of computers).
The Supreme Court has not yet decided these computer-based questions. In
X-Citement Video,
the Court never “expressly h[e]ld that § 2252, as so construed [by the Court], passed constitutional muster.”
Matthews,
One
post-X-Citement Video
challenge to the statute’s lack of scienter discussed above has been considered, and rejected, by the Court of Appeals for the Fourth Circuit. In
Matthews,
[I]f § 2252 is interpreted to require only receipt or transmission of images known to be child pornography [the scienter requirement implied under X-Citement Video ], the statute violates the Due Process Clause because it contains no criminal intent requirement, even though nothing suggests that Congress desired such a harsh result.
Matthews asserts that the absence of a bad motive or evil intent mens rea requirement in the statutory language poses a constitutional problem with § 2252. He maintains that the lack of such a criminal intent requirement in the wording of the statute does not eliminate it as an element of the offense absent clear *353 evidence that Congress intended such a result. He also argues that, particularly in light of the possibility that an Internet user could innocently view child pornography, the requisite mens rea must reflect a bad motive or evil intent in order to target those who produce and trade child pornography for profit-motivated or prurient purposes.
In sum, by arguing that conviction under § 2252 requires the government to prove that a defendant trafficked in child pornography with a bad motive or evil intent to cause the social harm of the offense, Matthews attempts to insert the term “willfully” into the statute. The Constitution does not compel this. If Congress had intended to require “willfulness,” it certainly could have drafted a statute so stating. It did not do so. The scienter requirement Congress did choose — “knowingly”—evidences no intent to exempt “innocent” use of child pornography from prosecution.
Id.
at 352;
see United States v. Irving,
Mattheios
dealt with the problem posed by intentional traffic in child pornography, though for benign purposes. The appellate court arguably appropriately found that Congress, in criminalizing all child pornographic materials, did not provide any exceptions for their “innocent use” by researchers or journalists. The statute was not designed, however, to criminalize non-malign accidental or unintentional exposure to child pornography, as evidenced by the statute’s limited safe harbor provision, which the
Matthews
court dismissed in a footnote without analysis.
Matthews,
6. Overbreadth
Any challenge for lack of scienter would be closely related to an over-breadth challenge under the First Amendment. Polizzi has standing to argue the statute is unconstitutionally broad.
See Federal Election Commission v. Wisconsin Right to Life, Inc.,
— U.S. -, -,
Although child pornography itself is not constitutionally protected speech, see Part III.F, infra, virtually all other Internet activity is. While section 2252 by its terms does not outlaw any First Amendment speech, it indirectly criminalizes protected activities by its potential to impose severe incarceratory punishments on the unintentional results of such activities, i.e., the accidental computer-based receipt and possession of child pornography via the Internet. After learning of the mandatory minimum and the lack of a defense for accidental use, one of this court’s interns, for example, refused to google “child pornography filtering,” for justifiable fear of committing a crime. Recall that Matthews involved research by a journalist.
To support an overbreadth claim in the First Amendment context, Polizzi must establish that the statute is “substantially overbroad.”
See, e.g., Ferber,
The statute as written and charged in the indictment is so broad, ambiguous and devoid of a critical mens rea requirement as to warrant a ruling that it is both unenforceable and unconstitutional. Despite the Supreme Court’s holding in
XCitement Video,
in the computer context the operative element of “knowledge” is not enough to infer evil intent; virtual strict liability applies. When accidental or unsought receipt and possession of electronic files via the Internet can occur readily, the statute’s “knowledge” requirement is insufficient to protect against due process violations. The charged provisions of sections 2252(a)(2) and (a)(4)(B) criminalizing receipt and possession respectively are substantially overbroad. “Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.’”
Grayned,
7. Precedent
Examining other child pornography cases is useful to demonstrate both the difficulties courts have faced in defining knowing computer-based receipt and possession as well as them proposed resolutions of the dilemmas: when faced with a defense claim that there was no actual receipt or possession or that the defendant was unaware of the images, courts have either conflated knowledge with intent or implied an intent requirement where none exists in the words of the statute — without stating they are doing so. Recognizing the statute’s deficiencies and utilizing the “presumption in favor of a scienter requirement [applying] to each of the statutory elements that criminalize otherwise innocent conduct,”
X-Citement Video,
a. Defining “Receipt” and “Possession”
The confusion over the definitions of “receipt” and “possession” is illustrated by the courts’ split over whether online viewing of child pornography necessarily implies possession, receipt, neither, or both:
Whether the [child pornography] statute reaches mere internet “browsing” is something of an open question.... The statute does not criminalize “viewing” the images, and there remains the issue of whether images viewed on the internet and automatically stored in a browser’s temporary file cache are knowingly “possessed” or “received.”
Perez,
The Court of Appeals for the Tenth Circuit “upheld a conviction for possession of files automatically stored in a browser cache because the defendant’s ‘habit of manually deleting images from the cache files established that he exercised control over them.’ ”
Perez, 247
F.Supp.2d at 484 n. 12 (quoting
United States v. Tucker,
Tucker maintains that he did not possess child pornography but merely viewed it on his Web browser. He concedes, however, that he knew that when he visited a Web page, the images on the Web page would be sent to his browser cache file and thus saved on his hard drive. Yet, Tucker contends that he did not desire the images to be saved on his hard drive and deleted the images from his cache file after each computer session.
Tucker,
The statute does not define possession, but in interpreting the term, we are guided by its ordinary, everyday meaning. See Johns v. Stewart,57 F.3d 1544 , 1555 (10th Cir.1995). Possession is defined as “the holding or having something (material or immaterial) as one’s own, or in one’s control.” Oxford English Dictionary (2d ed.1989); see also United States v. Simpson,94 F.3d 1373 , 1380 (10th Cir.1996) (defining “knowing possession” in drug context as encompassing situations in which an individual “knowingly hold[s] the power and ability to exercise dominion and control” over the narcotics (quotation omitted)). Tucker contends that because he did not personally save, or “download,” the images to his hard drive, he had no control over them.
Id.
The defendant in Tucker “possessed” the images because he “had control over *356 the files present in his Web browser cache files.” Id. at 1204 & n. 15 (citing testimony from law enforcement that a person could access a cache file and “do almost anything with it”). The appellate court also emphasized that the defendant had intentionally sought out and viewed child pornography knowing that the images would be saved on his computer, even if only temporarily; thus “his possession was voluntary.” Id. at 1205 (emphasis supplied). But the court “offer[ed] no opinion on whether the mere viewing of child pornography on the Internet, absent caching or otherwise saving the image, would meet the statutory definition of possession.” Id. at 1204 n. 15. Neither did the court “address the question whether an individual could be found guilty of knowingly possessing child pornography if he viewed such images over the Internet but was ignorant of the fact that his Web browser cached such images.” Id. at 1205 n. 16.
The Court of Appeals for the Ninth Circuit has adopted for computer crimes the Tenth Circuit’s traditional definition of possession as “dominion and control.”
We begin with the text.... We interpret the term “knowing possession” according to its plain meaning, and presume Congress intended to apply traditional concepts of possession. “Possession” is “[t]he fact of having or holding property in one’s power; the exercise of dominion over property.” Black’s Law Dictionary 1183 (7th ed.1999). Thus, to establish possession, “ ‘[t]he government must prove a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over [it].’ ”
Romm, 455 F.3d at 999 (citations omitted). Like the defendant in Tucker, the defendant in Romm viewed child pornographic images online; “his computer automatically saved copies of the images to his ‘internet cache,’ ” and he later deleted those images. Id. at 993. Based on forty images deleted from his internet cache and two other deleted images, the defendant was convicted of knowingly receipt and possession. Id.; see 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B). The appellate court more or less equated online viewing — however brief — with possession because of the automatically saved internet cache files:
Romm concedes there was sufficient evidence for the jury to find he acted with the requisite mental state of knowingly, but rather contends that the act he committed was merely the viewing of child pornography, not the possession or receipt of it. We disagree. In the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it. See United States v. Tucker,305 F.3d 1193 , 1204 (10th Cir.2002) .... Here, we hold Romm exercised dominion and control over the images in his cache by enlarging them on his screen, and saving them there for five minutes before deleting them. While the images were displayed on Romm’s screen and simultaneously stored to his laptop’s hard drive, he had the ability to copy, print, or email the images to others. Thus, this evidence of control was sufficient for the jury to find that Romm possessed and received the images in his cache.
Romm,
Both Tucker and Romm are examples of judicial attempts to apply concepts from traditional criminal law (e.g, “knowing possession of illegal drugs”) to computer *357 possession. But, as already demonstrated, it is inappropriate to carry over “traditional” notions of possession, such as driving a hijacked truck on city streets to the “capturing” of video images by the click of a computer key in private.
Romm
also shows how slight, if any, the differences are between computer possession and receipt. In Internet use, receipt and possession may constitute the same act.
See, e.g., id.
at 998 (“[Wjhether Romm ‘received’ the images in his cache depends on whether he knowingly took possession of them.”);
United States v. Kuchinski,
This conflation of receipt and possession raises a problem of duplicity where both are charged as to the same document since the same click achieves both.
But see, e.g., United States v. Skotzke,
No. 06-20475,
b. Inferring Intent from Nom-Operative Facts
Most courts have avoided the “knowing” problem by looking to other evidence to infer knowledge — in effect, an unauthorized expansion of the statutes’ “operative” words. The seeking out of child pornography, for instance — a factor on which both
Romm
and
Tucker
relied — is not an element of the crime. Whether a defendant sought the images should have made no difference in determining what were operative elements of the statute, though it may have had a bearing on discretionary aspects of the sentence. That the government can prove a defendant has viewed certain images more than once is likewise non-operative. Viewing on multiple occasions is not an element of possessing, so it should have made no difference under the statute whether defendant viewed the images one or more times.
See United States v. Dean,
Neither is the intentional or unintentional storage of images an element of section 2252(a)(2) prohibiting receipt. In
Irving,
the Second Circuit Court of Appeals rejected an insufficiency of evidence claim on the ground that the government had proved knowing possession and receipt, despite defendant’s contention that someone else could have saved the illicit images and placed them onto his hard drive.
8. Remedy
Although a court may impose a “limiting construction” on a statute “in considering a facial challenge,” it may do so “only if the statute is readily susceptible to such a construction.”
Reno v. American Civil Liberties Union,
Interpretation of the statute to meet constitutional requirements in a case such as the present one is dubious.
Cf. Reno,
The statute charged contains no definition of “receipt” or “possession,” and no other mens rea element beyond “knowingly.” The case is unlike others in which courts “have construed a statute narrowly because the text or other source of congressional intent identified a clear line that [a court] could draw.” Reno,
B. Cruel and Unusual Punishment
Because the Eighth Amendment requires a punishment to be both “Cruel and Unusual” to be unconstitutional, U.S. Const, amend. VIII (emphasis added), cruelty and unusualness must be separately considered.
*359 1. Is the Punishment Cruel?
Imprisonment of at least five years for this defendant
is
cruel. Few jurors or others would send a psychologically stunted man who: had suffered vicious sexual abuse as a child; without much of a formal education, had taught himself to play and collect music; had owned and operated a popular Italian restaurant; had established a home and family with a loving wife and children; and had earned the trust of his neighbors, to prison for five years because he repaired to a locked room in his garage to watch child pornography received on his computer. As one juror explained, Polizzi needed treatment, not a destructive long prison sentence.
See
Part II.B.8,
supra; cf. Hudson v. McMillian,
The cruelty we accept towards those different from ourselves, such as prisoners and criminal defendants, has been traced by some scholars back to American slavery, where the utmost cruelty was tolerated legally and socially. Jeremy Waldron, Foreword to Colin Dayan, The Story of Cruel & Unusual, at xv-xviii (2007). Slaves being thought of as non-human, there were few inhibitions against mistreating them as fellow persons.
Cf.
The Golden Rule, “Do onto others as you would have them do onto you,”
as quoted in Johnson v. Celotex Corp.,
In its earlier cases, the Supreme Court defined “cruelty” of punishment in terms of barbaric or tortuous treatment.
See Gregg v. Georgia,
2. Is the Punishment Unusual?
A five-year mandatory minimum is not unusual. There are many instances in this country where cruelty in punishment is adopted by Congress as a policy: the 100-to-1 sentencing weight ratio for cocaine base (crack) versus powder cocaine, which has punished the Black more than the White community; capital punishment, unique in the western world, which has been abandoned even in large parts of this country; and excessively rigid guideline sentences that have overfilled our prisons and denuded minority communities of males in their prime years, contributing to a destructive culture sending young men down the pipeline of crime and early death. See, e.g., Adam Liptak, More than 1 in 100 Adults Are Now in Prison in U.S.: Inmate Population is Highest in the World, N.Y. Times, Feb. 29, 2008, at A14 (since 1987 the national prison population has nearly tripled, with great taxpayer burden); cf. Dayan, supra, at 15 (quoting an American abolitionist in reference to an 1822 Mississippi “slave law”: “And it is only an unusual punishment which is forbidden! The masters and overseers have only to repeat their excessive punishments so frequently that they become ‘usual’, and the statute does not apply to them!”).
The cruelty and injustice of mandatory mínimums are widely recognized. In a speech to the American Bar Association, Justice Kennedy noted that he could “accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.” Anthony M. Kennedy, Assoc. Justice, Supreme Court of the United States, Address at A.B.A. Annual Meeting (Aug. 9, 2003) (requesting the Association urge Congress to repeal mandatory mínimums). Because of their very commonality “in a world of statutorily fixed mandatory sentences for many crimes,”
Blakely v. Washington,
In the federal system, many drug crimes, firearms offenses, and child sex crimes entail mandatory mínimums and many offenders are sentenced under them every year. See Appendix B, infra (state mandatory minimum sentences for child sex offenses); Appendix C, infra (mandatory mínimums in federal statutes). There are “at least 171 individual mandatory minimum provisions currently in the federal criminal statutes.” Ricardo H. Hi-nojosa, Chair, United States Sentencing Commission, Statement Before the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security 2 (June 26, 2007), available at http://www. ussc.gov/testimony/6_26_07.pdf (hereinafter Hinojosa). For fiscal year 2006, 20,737 federal offenders were convicted on 33,636 counts of violating statutes carrying minimum penalties:
Of these 33,636 counts of conviction, the overwhelming majority (94.4%) were for drug offenses (27,898 counts of conviction, or 82.9%) and firearms offenses (3,864 counts of conviction, or 11.4%). Most of the 171 mandatory minimum provisions rarely if ever were used in fiscal year 2006, with 68 such provisions not used at all.
Id. at 2.
Faced with a mandatory minimum, some defendants are more willing to test their case in open court because they run little risk of a higher sentence. Ninety-five percent (95.7%) of all federal offenders in *361 fiscal year 2006 pled guilty; four percent (4.3%) of all offenders were convicted after trial. Id. at 5. Those offenders convicted under a statute carrying a mandatory minimum penalty went to trial slightly more often than general offenders: ninety-three percent (93.2%) pled guilty, and 6.8% were convicted after trial. Id.
Over six hundred people were convicted of sex crimes carrying a mandatory minimum sentence in 2006. Id. at 8 tbl.3. Violations of 18 U.S.C. § 2252, containing the two subsections under which Polizzi was convicted, totaled 949 counts. Id. at app. B.
Criminal sexual abuse, pornography, and prostitution offenses represent a small percentage of the overall federal caseload. In fiscal year 2006, 605 criminal sexual abuse, pornography, and prostitution offenders were convicted of statutes carrying a mandatory minimum penalty, which represents 2.9 percent of all offenders convicted of such statutes and 38.6 percent of the 1,569 criminal sexual abuse, pornography, and prostitution offenders in fiscal year 2006. Of these 605 offenders, 13 offenders (2.1%) were sentenced without regard to and below the statutory mandatory minimum penalty because of a substantial assistance motion by the government under 18 U.S.C. § 3553(e).
Id. at 14.
Defendants facing possible mandatory minimum sentences have few options to negotiate a lower sentence. Because of the substantial assistance and safety valve provisions, either alone or in combination with one another, “7,812 drug offenders altogether (or 47.8% of the 16,334 drug offenders) were sentenced without regard to and below the mandatory minimum.” Id. at 9. In contrast, only 2.1% of sex offenders were able to obtain a non-mandatory minimum sentence. Id. This discrepancy may arise in part because of sex offenders’ ineligibility for 18 U.S.C. § 3553(f)’s safety valve provision as well as their inability to provide “substantial assistance” towards prosecutions of other crimes; receivers and possessors like Pol-izzi have no valuable information to give law enforcement since their transactions take place anonymously over the Internet. See 18 U.S.C. § 3553(e) (sentence below statutory minimum permitted “to reflect a defendant’s substantial assistance,”' upon motion by the government). Even where defendants may be sentenced without regard to a statutory minimum, courts seem loath to reduce sentences in the area of sexual abuse prosecutions. Id. at 14-15 (noting that 31 offenders in this category were eligible for a sentence below the statutory minimum in 2006, but 18 (58.1%) received a sentence at or above the statutory minimum).
Even though many would characterize some mandatory minimum sentences as “draconian,” the Supreme Court has repeatedly upheld their constitutionality, including: 1) a sentence of 25 years to life, under the California “Three Strikes Law,” for shoplifting three golf clubs, imposed on a defendant with a long minor criminal history and four previous burglary/robbery felony convictions,
Ewing v. California,
Given widespread use of mandatory mín-imums in this country, a five-year mandatory minimum sentence for receiving child pornography is not constitutionally unusual, despite the widespread view that Congress ought to reconsider their widespread statutory use. See Appendix C, infra; see also Hinojosa, supra, at 1-2.
C. Disproportionate Penalty
The Eighth Amendment’s Cruel and Unusual Punishment Clause, in addition to prohibiting wantonly painful or unique punishments, also prohibits sentences that are grossly disproportionate to the crime committed.
Solem v. Helm,
As applied to Polizzi, a sentence of five years would be considered by many to be shockingly disparate, given the unique circumstances of his case. But, because application of the mandatory minimum would not be considered unconstitutionally grossly disproportionate, defendant’s constitutional challenge on this ground fails.
1. Proportionality Analysis
Proportionality analysis requires an evaluation of the relationship of the offense to the punishment. It takes into account the offender’s culpability.
See, e.g., Harmelin v. Michigan,
Whether proportionality analysis applies in non-capital cases such as those involving mandatory minimum sentences is unclear.
Compare Ewing v. California,
The Supreme Court has “not established a clear or consistent path for courts to follow” in applying proportionality analysis.
United States v. Cunningham,
The court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem,
Eight years after
Solem,
the Supreme Court refined proportionality analysis in
Harmelin,
All of these principles — [1] the primacy of the legislature, [2] the variety of legitimate penological schemes, [3] the nature of our federal system, and [4] the requirement that proportionality review be guided by objective factors — inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids [5] only extreme sentences that are “grossly disproportionate” to the crime.
Harmelin,
*364
Justice Kennedy also warned that courts should be reluctant to invalidate sentencing schemes under the disproportionality principle. An overly aggressive approach is not consistent with our scheme of federalism.
See id.
at 1000,
2. Is Five Years Constitutionally DispropoHional ?
Under these principles, Polizzi’s sentence is not unconstitutionally disproportionate. Polizzi’s unique circumstances— most notably the private and passive nature of the crime, his abused childhood, his mental problems, and the severe penalty he faces — might be considered by many to give rise to an inference of gross dispro-portionality. Polizzi is “the rare case in which [this] threshold comparison” is probably met, making intrajurisdictional and interjurisdictional analyses appropriate.
Harmelin,
a. The Nature of Polizzi’s Crimes and the Contemplated Penalty
Under
Harmelin,
the initial inquiry is to compare the seriousness of the offense to the harshness of the proposed penalty — whether the mandatory five-year prison sentence is grossly disproportionate to Polizzi’s offense of possessing and receiving via the Internet the charged images depicting minors engaged in sexually explicit conduct. “In weighing the gravity of the offenses, the court should consider the offenses of conviction and the defendant’s criminal history, as well as ‘the harm caused or threatened to the victim or society, and the culpability of the offender.’ ”
United States v. Angelos,
i. Severity of Offenses
Polizzi’s sentence-triggering criminal conduct, as statutorily defined and charged, is his passively receiving and possessing multiple images of child pornography from the Internet in his personal computers in private. Measured by the applicable statutory terms of punishment, defendant’s receipt of the images has been judged by Congress to be more serious than his passive possession. Compare 18 U.S.C. § 2252(b)(1) (five-year minimum) with 18 U.S.C. § 2252(b)(2) (up to ten years, or a fine).
Certainly, Internet transfer of child pornography is serious. It arguably causes great harm.
See
Part III.D,
infra.
Here, however, there is no statutory charge of
*365
production, distribution, or overt encouragement of commercialization of child pornography, nor allegations of any other improper conduct by the defendant.
Cf.
Dr. Goldsmith’s Rep., June 9, 2006 (finding that Polizzi did not meet the DSM-IV criteria for pedophilia and was not at risk for abusing children). Despite the fact that receipt and possession of child pornography are classified as “violent crimes” (at least in terms of release and detention pending judicial proceedings),
see
18 U.S.C. § 3156(a)(4)(C), Polizzi himself did not engage in any violence or threats of violence in furtherance of, or in connection with, his receipt or possession. “It is well-established that crimes marked by violence or threat of violence are more serious and that the absence of direct violence affects the strength of society’s interest in punishing a particular criminal.”
Angelos,
The Supreme Court has noted that there are “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is ‘frightening and high.’ ”
Smith v. Doe,
ii. Harm Caused by the Offenses
The seriousness of Polizzi’s offenses cannot be fully understood without considering any resulting harm to individual victims or society. Measuring the harm caused by receipt of child pornography pictures in private is difficult. Looking at such pictures alone in a private, locked room is — in its most immediate sense-— non-violent and victimless. Yet the simple existence (and thus any possession) of pornographic images may cause “the child victims continuing harm by haunting the children in years to come.”
Berger,
Receiving such images contributes to their proliferation. The receipt and possession of child pornography — to the extent that there is a commercial component,
see
Part III.D,
infra
— harm society by increasing demand and supporting the distribution chain. Such confounding factors warranting a higher sentence were not charged in the instant case and thus do not support an automatic high statutory minimum term of imprisonment. They might, on balance, warrant a substantial discretionary prison sentence since the defendant’s three eighty-nine dollar credit card payments to join the Hardcore website and download the charged images contributed
*366
to the market in child pornography, financially supporting and encouraging the producers and distributors. Because Congress has found “[t]he prevention of sexual exploitation and abuse of children [to] constitute[] a government objective of surpassing importance,”
New York v. Ferber,
Criminalizing possession of child pornography could be seen as the equivalent of criminalizing the possession of illegal drugs, except that possession in the drug context is physical and active, while, as charged in this child pornography case, possession may be passive.
Cf.
Part III A,
supra; Harmelin,
in. Severity of Punishment
Five years in a federal prison is a substantial punishment.
Cf. Solem,
Although five years in prison would be a severe penalty for Polizzi, a five-year sentence imposed pursuant to the mandatory minimum would in fact be substantially less that the sentence recommended for him under the Sentencing Guidelines for receiving child pornography: 135 to 168 months. The high guideline sentence adopted by specialists in criminal sentencing — members of the Sentencing Commission — suggests that a five-year mandatory sentence is not disproportionate.
His punishment must be considered with other penalties. Polizzi’s chastening will not be over at the end of his prison term or even of his term of supervised release. Upon his release from prison, he will have to register as a sex offender under both federal and New York law. Each have different, if overlapping, provisions.
Pursuant to the Sex Offender Registration and Notification Act, Title 1 of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C. §§ 16901 et seq.) (hereinafter Adam Walsh Act), Polizzi is a “tier I sex offender.” See 42 U.S.C. § 16911(5)(A) (defining the term “sex offense” to include federal offenses under Chapter 110 of Title 18, which includes 18 U.S.C. § 2252); § 16911(2) (defining the term “tier I sex offender”). As a tier I offender, he will be subject to federal reporting requirements for fifteen years, § 16915(a)(1), with the possibility of early termination after ten years under specified limited circumstances. § 16915(b). Beginning before his release from prison, § 16913(b)(1), Polizzi must register in every jurisdiction where he lives or works. § 16913(a). Any change of residence or *367 employment must be reported in person within three business days. § 16913(c). Polizzi will have to appear in person every year to be photographed and to verify that his information on file remains accurate. § 16916(1). Failure to timely register exposes him to additional prison time. § 16913(e). Law enforcement must notify any area children’s organizations as well as any individuals requesting notification upon any changes in registration.
Registration information for the new National Sex Offender Registry, see § 16919 — most of which will be publicly available on the National Sex Offender Public Website, see §§ 16918, 16920 — includes name, social security number, address, place of employment, and car information. § 16914(a). His fingerprints, DNA, criminal history, physical description, and driver’s license will be in the Registry. § 16914(b). The National Sex Offender Public Website
[SJhall include relevant information for each sex offender and other person listed on a jurisdiction’s Internet site. The Website shall allow the public to obtain relevant information for each sex offender by a single query for any given zip code or geographical radius set by the user in a form ....
§ 16920; see also Corey Kilgannon, Wom an with a Mission: Keeping Tabs on Sex Offenders, N.Y. Times, Mar. 18, 2008, at B5.
To be eligible for federal grant money, states must, under the Act, ensure public access to this information:
[EJach jurisdiction shall make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, all information about each sex offender in the registry. The jurisdiction shall maintain the Internet site in a manner that will permit the public to obtain relevant information for each sex offender by a single query for any given zip code or geographic radius set by the user.
§ 16918(a). Some tier I offenders may be excluded from state websites, but not persons in Polizzi’s situation. Because possession of child pornography is considered a “specific offense against a minor,” his information must be included. § 16918(c)(1); § 16911(7)(G).
New York state sex offender registration requirements are similar to the federal requirements. The New York Sex Offender Registration Act (“SORA”), N.Y. Corr. Law §§ 168 et seq. (McKinney 1996), established the state Sex Offender Registry. See http://criminaljustice.state. ny.us/nsor/. SORA was enacted to assist local law enforcement agencies and to protect communities by: 1) requiring sex offenders to register with the State, and, 2) providing information to the public about certain sex offenders living in their communities. Persons convicted of specific federal crimes, including all federal offenses under 18 U.S.C. § 2252, must register with New York State. See N.Y. Corr. Law § 168 — a(2)(d); § 168-b (listing types of registration information required); § 168-f. Under the New York registration system, Polizzi would presumably be classified as a Level 1 (low risk) offender; his exact classification would be determined after a hearing upon his release from prison. See § 168-1 (establishing a board of examiners to determine risk level). Level 1 offenders are required to register for twenty years. See § 168 — h(l). Information for Level 1 offenders, under current New York State law, is not available to the public. See § 168-q. This is likely to change pursuant to the Adam Walsh Act, assuming New York complies in order to receive federal law enforcement money. New York law also requires Poliz-zi to report any Internet accounts. See § 168 — b(l)(a).
*368 Unlike some other states and municipalities, neither the federal government nor New York State restricts where Polizzi may live or travel. See, e.g., Marcus Nieto & David Jung, The Impact of Residency Restrictions on Sex Offenders and Correctional Management Practices: A Literature Review 3 (2006) (twenty-two states and hundreds of municipalities have enacted some form of residency restrictions prohibiting sex offenders from living within a certain distance of schools, daycare centers, or places where children congregate; some communities have enacted “banishment ordinances” excluding sex offenders altogether); Jamie Fellner, The Wrong Sex Offender Laws: Although Popular, California’s Residency Restrictions and Registries Do Little to Protect Children, L.A. Times, Sept. 18, 2007 (noting that under California’s new Proposition 83, sex offenders released from prison are barred from living within 2,000 feet of any school or park); Jessica Fusco, Stricter Rules for Sex Offenders Approved, Utica Observer-Dispatch, Oct. 10, 2007 (barring certain sex offenders from living in or even entering areas within 1,500 feet of parks, playgrounds, schools and child-care centers in Oneida County, New York). Polizzi may also have conditions attached to his supervised release limiting contact with computers or children.
As a registered sex offender, Polizzi’s penalty for his crime will extend until his required period of registration ends. Some courts have characterized sex offender registration as non-punitive.
See Smith,
iv. Polizzi’s Culpability
In comparing the severity of his offenses to that of his contemplated punishment, Polizzi’s culpability is a critical factor. Five members of the jury publicly questioned Polizzi’s culpability (although not his guilt). There was strong support among the jurors for a non-jail sentence due to the unique circumstances of his case: he was not culpable enough in the minds of some of them to go to prison. See Part II.B.8, supra. Polizzi embodies the rags-to-restaurant owner successful immigrant archetype. He has no criminal history. Trial Tr. 165. His professed reason for searching for child pornography had some non-criminal roots in his enduring psychological trauma from his severe childhood sexual abuse in Sicily, including being sexually assaulted by his uncle, a family friend, and two police officers (as well as witnessing the murder of his friend by other police officers). See Part II.A.1, supra. To the extent that members of the jury had in mind mental health treatment rather than long incarceration, they apparently credited defendant’s testimony. See Def.’s Letter 2 n. 3, Dec. 5, 2007, Docket Entry No. 114 (reporting that it was gen *369 erally accepted by most of the jurors that the incidents in Sicily did happen, that jail would serve no purpose, and that Polizzi should receive psychiatric counseling in lieu of prison); cf. Richard B. Krueger, The New American Witch Hunt: Demonizing Sex Offenders by Passing Tough, Mindless La%vs Rather than Treating Them Makes Little Sense, L.A. Times, Mar. 11, 2007. Also see the many filed letters from the community supporting leniency in sentencing the defendant.
There is little doubt that childhood sexual trauma psychologically scarred Polizzi. At trial, the parties disputed the exact nature and extent of Polizzi’s diagnoses, but no one seriously denied that he was suffering from some kind of post-traumatic stress.
See
Part II.B.6,
supra.
That the jury did not believe his mental illnesses rose to the level of legal insanity under the federal Insanity Defense Reform Act, 18 U.S.C. § 17, does not imply that his culpability is the same as a defendant with no mental health problems.
Cf. Roper v. Simmons,
Because of Polizzi’s unique circumstances, the private, passive nature of his crime, lack of criminal history, low risk of recidivism, psychological disabilities, and reasons for searching for child pornography, the mandatory minimum of five years’ imprisonment is sufficiently severe so that, under
Harmelin,
there is an inference of gross disproportionality. Whether his sentence violates the Eighth Amendment, however, depends upon the second and third
Harmelin
factors, requiring an in-tra- and extra-jurisdictional comparison.
See Harmelin,
b. Punishment for Other Offenses in This Jurisdiction
A comparative analysis of other federal punishments for similar offenses reveals that a five-year term of imprisonment is not disproportionate. Two comparisons are useful: first, with other sentences that have been imposed for possession-related crimes, and second, with the mandatory mínimums that apply to other child sex crimes.
See Solem,
In other contexts where federal law punishes possession of a forbidden object, sentences can run much higher than five years. Possession of drugs or a firearm can, for instance, result in very lengthy sentences pursuant to other federal mandatory mínimums or harsh sentencing guidelines.
See, e.g.,
Appendix C,
infra;
21 U.S.C. § 844(a) (five years for possession of more than five grams of cocaine base);
Logan v. United States,
— U.S. -,
For other child sex crimes, federal law mandates prison terms that are as long as, or longer than, the one at issue here. See also Appendix C, infra. A second conviction for possession of child pornography, for example, requires a ten-year minimum. See 18 U.S.C. § 2252A(a)(5). Persons who employ or persuade a minor to engage in the production of child pornography are subject to a fifteen-year mandatory minimum. Sexual abuse of a child under twelve requires thirty years. See 18 U.S.C. § 2241(c). But the grading of punishments is not fine-grained. Distribution of child pornography, for instance, an arguably more culpable act, is subject to the same five-year mandatory minimum term under 18 U.S.C. § 2252(b)(1) as receipt. See Part III.D.2, swpra. Despite discrepancies, it cannot be said that a five-year sentence is excessive in comparison to those required for other federal crimes.
c. Punishment for Similar Offenses in Other Jurisdictions
Disproportionality analysis requires a court to examine the punishments for similar offenses in other jurisdictions to detei’-mine whether the applicable penalty is grossly excessive. In such an inquiry it is helpful to look at what types of sentences Polizzi would have received under state law for similar offenses. See Appendix B, infra. This analysis cuts strongly in favor of the statute’s constitutionality, since Pol-izzi could have received a comparable sentence in many states.
Had Polizzi been prosecuted in New York State courts, his conviction for possession — New York state does not criminalize receipt — of child pornography would be a class E felony, which carries a minimum sentence of one year’s imprisonment and a maximum of four. See N.Y. Penal Law § 70.00; § 268.11. (In New York, all child pornography crimes, including producing, directing, and promoting, entail the same one-year minimum term, though they have different máximums. See § 70.00.) See also, e.g., Nate Schweber, II Arrested in New Jersey on Child Pornography Charges, N.Y. Times, Oct. 5, 2007, at B4 (noting that the maximum penalty for possession of child pornography in New Jersey is eighteen months); Hillary Wool, Former Valedictorian Is Guilty in Child Pom Case, Dartmouth.com News, Sept. 26, 2006 (state defendant received two years of prison and five years of probation).
An analysis of child pornography offenses as punished by state law, see Appendix B, infra, reveals that the federal penalties for receipt and possession of child pornography are similar to — and not far in excess of — those of many states. In recent years, most states have enacted stricter and more punitive laws for child pornography and related offenses, especially those involving computer crimes. See Eric R. Diez, “One Click, You’re Guilty”: A Troubling Precedent for Internet Child Pornography and the Fourth Amendment, 55 Cath. U.L.Rev. 759, 765-66 & n. 81 (2006). State statutory schemes primarily prescribe sentences in one of two ways: within the text of the statute itself, or, by designating the offense as a specific class of felony or misdemeanor. If the language of the statute indicates that the sentence is mandatory or the prescribed term for the specific class is mandatory, (i.e., “shall”), the offense is treated below and in Appendix B as having a mandatory minimum. Medians are based upon all states which prescribe a minimum term of incarceration either specific to the child sex offense or the prescribed class of offense.
Forty-nine states now criminalize simple possession of child pornography. Nebraska, which criminalizes only possession with *371 intent to distribute, is the exception. See Child Pornography Prevention Act, Neb. Rev.Stat. §§ 28-1463.01-05 (criminalizing only possession with intent to “rent, sell, deliver, distribute, trade, or provide to any person” child pornography). Twenty-two out of the forty-nine states prescribe mandatory minimum sentences for possession. Five of these twenty-two provide for statutory mandatory minimums specific to child sex offenses. See Ga.Code Ann. § 16-12-100(2)(g)(l) (five years); La.Rev.Stat. Ann. § 14:81.1(E) (two years); Miss.Code Ann. § 97-5-35 (five years); Mont.Code Ann. § 45-5-625 (four years if the child depicted is under sixteen years of age, and 100 years if the child is under twelve); Nev. Rev.Stat. § 200.730 (one year). The seventeen other states’ mandatory minimum sentences correspond to those provided for specific classes of felonies. See, e.g., Ala. Code § 13A-12-192 (classifying possession as a Class C felony, which carries a thirteen-month mandatory minimum). Minimum mandatory terms of imprisonment range anywhere from six months (Indiana and Ohio) to 100 years (Montana). The median mandatory minimum sentence is two years.
In comparison to the forty-nine states criminalizing possession, only thirteen prohibit the knowing or intentional receipt of child pornography; two of the thirteen criminalize only receipt with intent to distribute, sell, etc. The mandatory minimum sentences for simple receipt range from six months’ imprisonment (Ohio), Ohio Rev.Code Ann. § 2907.321, to ten years (Arizona, if the child depicted is under fifteen), Ariz.Rev.Stat. Ann. § 13-3553. Four of the eleven states that criminalize both receipt and possession prescribe the same punishments for both. The median mandatory minimum sentence for receipt is four years.
The median mandatory sentence for possession with intent is five years, which is equal to that provided by federal law. See 18 U.S.C. § 2252(a)(3). For receipt, the states’ median mandatory sentence of four years is comparable to the federal five-year minimum. It is striking, however, that only eleven states criminalize receipt without intent (and only thirteen criminalize any form of receipt). In thirty-nine states, Polizzi would appear to be liable for possession only, with a median two-year mandatory minimum, substantially less than the five years he faces under federal law for receipt.
Possession of child pornography in some foreign jurisdictions is subject to penalties similar to those in the United States. In England, the possession of child pornography carries a maximum term of five years’ imprisonment, but no mandatory minimum. Criminal Justice Act, 1988, Ch. 33, § 160 (Eng.). In Hong Kong, the possession of child pornography may be punished by up to five years on indictment or two years on summary conviction. Prevention of Child Pornography Ordinance, (2003) Cap. 579, 3 (H.K.). The Canadian federal criminal code does not criminalize receipt, but does criminalize the possession of, and access to, child pornography. For the former, the mandatory minimum is forty-five days (conviction by indictment) or fourteen days (summary conviction); the maximum for possession is five years or eighteenth months for access. See Canada Criminal Code, R.S.C., ch. 46 § 163.1 (1985); see also Wade Riordan Raaflaub, Parliamentary Information and Research Service, Library of [Canadian] Parliament, Mandatory Minimum Sentences (Jan.2006), http:// www.parl.gc.ca/information/library/ PRBpubs/prb0553-e.pdf.
Given the similarities between state and federal mandatory minimum sentences, the federal statute is not disproportional. Federal law is significantly more lenient than that of several states.
See,
*372
e.g., Berger,
That most states do not follow federal law in separating receipt from possession is not dispositive of the issue of proportionality. It does, however, give weight to the argument that receipt is enough of an equivalent to possession that criminalizing both is redundant, and that penalizing them differently is irrational.
A sentence of five years’ imprisonment cannot be said to violate the Cruel and Unusual Clause’s proportionality principle so long as the statute of conviction itself is valid and some implied non-passive element of mens rea is assumed. As demonstrated in Part III.A, supra, the receiving provision is arguably unconstitutional. But the required minimum sentence would not be so grossly disproportional as to be unconstitutional. Polizzi’s sentence, in comparison to those provided for other federal crimes, is not constitutionally excessive and would not violate the Eighth Amendment.
D. Irrationality
1. Generally
Defendant and others have argued that the federal laws criminalizing child pornography are irrational and therefore unconstitutional. These arguments are not tenable. Under rationality review, a statute will be deemed constitutional unless there is “no reasonable basis” on which the Act can be upheld, or Congress has acted in a “patently arbitrary or irrational way.”
See, e.g., U.S. Railroad Retirement Board v. Fritz,
Here, there are a number of concerns that rationally could have led — and apparently did lead — Congress to pass child pornography legislation. The legislature has a legitimate interest in protecting the nation’s children. “It is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ”
Osborne v. Ohio,
Whether child pornography actually encourages its viewers to commit further physical sexual offenses has been disputed. The first congressionally-funded study, the 1970 Presidential Commission on Obscenity and Pornography, suggested no link between the two. The Effects Panel, The Impact of Erotica, Report of the Commission on Obscenity and Pornography 169 (1970). Almost twenty years later, a second Commission came to the opposite conclusion. U.S. Dep’t of Justice, Attorney General’s Commission on Pornography, Final Report (1986); Glen O. Robinson, The Electronic First Amendment: An Essay For the New Age, 47 Duke L.J. 899, 960-61 (1998); see also Report of the U.S. Senate Permanent Subcommittee on Investigations on Child Pornography and Pedophilia (1986) (“No single characteristic of pedophilia is more pervasive than the obsession with child pornography. The fascination of pedophiles with child pornography and child abuse has been documented in many studies and has been established .... ”). One recent report notes that child pornography may encourage sexual aggression by viewers, although research (and research subjects) is limited by the nature of the material:
The type of pornography believed to play a role in the etiology of socially learned sexual aggression is child pornography. This is different from rape pornography in that the victimized character is a child rather than a woman, but there may still be a considerable level of sexual violence or aggression toward the victimized character. Social learning theory proposes that a select group of individuals may view or read child pornography and subsequently develop sexual interest in children similar to those portrayed in the pornographic material. These individuals would observe models engaging in the sexual abuse of young children and would internalize this behavior as an acceptable form of sexual interaction.
Research on the applicability of child pornography to social learning theory has been somewhat limited, however. Unlike studies using rape pornography, child pornography has not been shown to research participants to elicit sexual arousal. Instead, researchers have relied on child molesters’ reports of their use of various pornographic materials. Child molesters have reported increased usage of child pornography prior to *374 committing their offenses. Recent research has suggested that use of child pornography is a reliable indicator of sexual interest in children, perhaps more so than previous offenses against children or other sexually deviant behaviors. Across these studies, offenders have reported the use of pornography to desensitize themselves, overcome their inhibitions, and arouse themselves in preparation for the sexual victimization of a child. Child pornography also appears to reduce empathy toward child victims ..., much in the same way that rape pornography reduces empathy or compassion for female victims. Portrayals of enjoyment on the part of the child victim, or a lack of negative consequences for the perpetrator, may help reinforce the pedophile’s views of children as an obtainable or appropriate sexual target.
Jill D. Stinson, Bruce D. Sales, & Judith V. Becker, Sex Offending, Causal Theories to Inform Research, Prevention and Treatment 87 (2008). It should be noted, however, that “no direct evidence of causality” has been found. See U.S. Dep’t of Justice, Project Safe Childhood, Protecting Children from Online Exploitation and Abuse 12 (2006). While hard data is difficult to come by, “the U.S. Postal Inspection Service reports that about one-third of the 2,718 people it has arrested on child exploitation charges since 1997 — arguably a skewed sample — also committed ‘contact offenses’ against children.” See Jerry Markon, Crackdown on Child Pornography: Federal Action, Focused on Internet, Sets Off a Debate, Wash. Post, Dec. 15, 2007, at Al.
Based upon available evidence, Congress could make rational findings that: 1) publishing pictures of children in pornographic poses is demeaning to those abused, and abuse is compounded by publication; 2) publishing, particularly on the Internet, encourages predation by viewers; and 3) dealing in child pornography is an international entrepreneurial crime, difficult to ferret out and to deter, requiring criminalization of, and high penalties for, the entire industry, including consumers. Given the dangers involved, these findings permit holding that the charging statutes and mandatory penalties applicable to the instant case pass rationality review.
2. Federal Laios Criminalizing Receiving or Possessing Child Pornography Are Not so Irrational so as to Violate the Constitution
Other arguments against the rationality of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B) arise from the fact that 1) they criminalize all possession and receipt of child pornography, without distinguishing between those defendants who pay for the materials and those who do not; and 2) they distinguish between possession and receipt, punishing the latter much more harshly than the former. These challenges fail. Congress’s decision to ban all types of possession could rationally have been based on the conclusion that a total prohibition would more quickly and fully destroy the market for child pornography. And, as many courts have concluded, Congress could have rationally decided that receipt is a more serious crime than possession.
Criminal responsibility for receipt and possession does not require any “purchase” or “commercial” element. Congress specifically eliminated the original commercial purpose requirements from many provisions of the statute in 1984.
See
Pub.L. No. 98-292, 98 Stat. 204 (1984). Added in 1990, the possession subsection never included a commercial element.
See
Pub.L. No. 101-647, 104 Stat. 4818 (1990). Because of the “unique realities of the child pornography market,”
see United States v. Holston,
A more serious constitutional problem arises from section 2252’s criminalization of both receipt and possession. Especially in the Internet age, receipt and possession may constitute the same act.
See
Part III.A,
supra; cf. United States v. Davenport,
To create separate offenses for receipt and possession — with a mandatory minimum applicable to one but not the other— arguably does not represent the most lucid or internally consistent punitive scheme. That few federal offenses entail mandatory mínimums,
see
Appendix C,
infra,
while most permit sentences in accordance with
post-Booker
judicial discretion, does present an opportunity for unfairness in individual cases. Yet the legislature’s decision to enact mandatory mínimums for some
*376
offenses but not others does not make a specific mandatory minimum sentence irrational.
See United States v. Vargas,
Given the similarities between computer-based receipt and possession, it might be more rational to classify and punish them similarly under 18 U.S.C. § 2252(b)(2), subject to a statutory incarceration term of zero to ten years. Most courts that have confronted the disparity in punishment between the two offenses have concluded, however, that it is rational because of receipt’s closer links to the marketplace.
See, e.g., United States v. Watzman,
By this reasoning, receipt is a more serious offense than possession, and the distribution or sale of child pornography should be punished even more harshly than receipt. Yet, as another example of section 2252’s odd penalty structure, a defendant who actively distributed illicit images would be subject to the same mandatory minimum as one prosecuted for passive receipt. A defendant found to have distributed, reproduced with intent to distribute, shipped, or transported the same 5,000 images as Polizzi received, perhaps by emailing hundreds of people or shipping boxes of videotapes, could be sentenced to the same five-year mandatory minimum (though the recommended guideline sentence would be higher). See 18 U.S.C. § 2252(a)(2) (“[AJny person who ... knowingly receives, or distributes, any visual depiction [of a minor engaged in sexually explicit conduct] or knowingly reproduces any visual depiction for distribution ... shall be punished” by at least five years’ imprisonment under section 2252(b)(1)) (emphasis added); § 2252(a)(1) (shipping and transporting). Polizzi could have been running a child pornography business out of his garage, earning great sums of money by selling the images worldwide, and would be still subject to the same five-year mandatory minimum.
The statute does seem to lack a relationship between degree of heinousness and amount of punishment. In drafting criminal statutes, however, Congress is not held by the Constitution to a precise calculus of harm and risk. Based on the rationale and precedent distinguishing receipt from possession and finding the former more severe, it cannot be said that the hierarchic penalty organization of this statute is *377 irrational. Including a mandatory minimum sentencing scheme in the statutory regulation of child pornography in order to advance the legitimate governmental interest of protecting children is not irrational.
E. Lenity
A canon of statutory interpretation, the rule of lenity requires that in construing an ambiguous criminal statute, a court should resolve any ambiguity in favor of the defendant.
See, e.g., Bifulco v. United States,
The doctrine of lenity is based upon the concern that statutes provide fair warning of what conduct is criminalized:
The rule of lenity concerns situations in which a legislature fails to give notice of the scope of punishment by leaving “a grievous ambiguity or uncertainty in the language and structure of the statute, such that even after a court has seized everything from which aid can be derived, it is still left with an ambiguous statute,” Chapman v. United States,500 U.S. 453 , 463,111 S.Ct. 1919 ,114 L.Ed.2d 524 (1991), in which case the rule of lenity tips the scales in favor of the defendant by requiring the court to impose the lesser of two penalties.
Sash v. Zenk,
It is the legislature — rather than a judge — that ought to specify what acts are prohibited.
See Bass,
But the lenity doctrine — at least in its traditional application of choosing the lesser of two ambiguous penalties- — does not apply here. The five-year mandatory minimum term of imprisonment for receiving child pornography and the ten-year maximum for possession are clear. But see Part III.A, supra (noting the statute’s ambiguity regarding the required mens rea).
Neither does 18 U.S.C. § 2252 nor any other mandatory minimum provisions contain an implicit reasonableness limitation, which other courts have used in applying the principle of lenity.
See Zadvydas v. Davis,
The rule of lenity does not stand between Polizzi and conviction. In the area of child sex offenses, Congress’s design appears to run counter to the principle Congress has expressed elsewhere that sentences should be no harsher than necessary to accomplish goals such as general deterrence.
Compare
18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary”)
with
§ 3553(b)(2) (in child crimes and sexual offenses, “the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless ...,” omitting the “sufficient, but not greater than necessary” language of subdivision (a)).
But see United States v. Selioutsky,
F. Free Speech
There is a sharp difference between our legal control through the criminal law of pornography depicting adults and that involving children. The former has been gradually loosened and the latter tightened. A brief review of the diverging developments in the context of free speech doctrine is required to understand how the deep aversion for child pornography has been reflected in a society increasingly tolerant of flaunting adult sexuality.
Despite the ringing pronouncement of the First Amendment, U.S. Const. amend. I. (“Congress shall make no law abridging the freedom of speech, or of the press.”), our freedoms related to speech are not absolute, particularly when public morals or private reputation may be endangered.
See Roth v. United States,
1. History of Pornography
The term pornography is derived from the Greek word, pomographos, which translates to the “writing of harlots.” Webster’s 3d New International Dictionary 1767 (1993). An 1864 definition traces the word’s roots to the ancient pictorial representations of the wild celebrations of the Greek god Bacchus. An American Dictionary of the English Language (1864) (“licentious painting employed to decorate the wall of rooms sacred to bacchanalian orgies, examples of which exist in Pompeii”), as quoted in Oxford English Dictionary, Compact Edition (New ed., 1991). Pornography now refers to “(1) a description of prostitutes or prostitution or (2) a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.” Id.
*379
Different societies have had widely ranging views on what constitutes acceptable sexual relationships between children and adults, children and other children, and among adults of different and the same genders.
Cf., e.g.,
Anthony Everitt, Augustus: The Life of Rome’s First Emperor 47, 149-50 (Random House, N.Y. 2006) (describing Julius Caesar’s rumored affair with his grand-nephew; Roman sexual mores apparently freely allowed affairs with slaves and noncitizens of either sex, including children). Views on what delineates the bounds of acceptable pornography also change, as anyone is aware who visits the excavations of Herculaneum— long buried by ashes from Mount Vesuvius — where exuberant pornography is visible. The works of great Renaissance and early Impressionist artists immortalized the images of children as sexual objects.
See Massachusetts v. Oakes,
A fascination with sex and pornography among the elite in modern times is not unknown.
See, e.g.,
Richard Aldous, The Lion and the Unicorn: Gladstone vs. Disraeli 52-54 (1st Am. ed.2007) (describing former British Prime Minister William Gladstone’s sexual perversions, for which he regularly scourged himself in private penance). The daily press routinely reveals similar sexual eccentricities among some current American leaders. Many less eminent American visitors to Europe carried home supplies of “French pictures” and sexually explicit writings after World War I.
Cf. United States v. One Book Entitled Ulysses by James Joyce,
A perusal of newspaper stands in cities like New York or Copenhagen would reveal the continuing widespread interest in sexuality and pornography. See, e.g., Elaine Sciolino, A Library Exhibition Not for the Children’s Room, N.Y. Times, Jan. 16, 2008, at El. Media attention focused on the issue in August 1995 when Calvin Klein released a controversial advertising campaign for his line of jeans critics referred to as the “kiddie porn” campaign. Amy Adler, The Perverse Law of Child Pornography, 101 Colum. L.Rev. 209, 251-52 (2001). The billboards, television and magazine advertisements featured photographs of adolescents posed in provocative positions. Id. at 252. While the clothing advertisements were dropped following the threat of criminal investigation, they proved to be an economic success, boosting sales and creating a collector’s market for the print advertisements. Id. at 253. Billboards, motion pictures and catalogs for clothing retailers continue to demonstrate the fascination of some with the subject. See, e.g., James E. Bristol, Free Expression in Motion Pictures: Child Sexuality and a Satisfied Society, 25 Cardozo Arts & Ent. L J. 333, 363-64 (2007). Pornography lives in art galleries through the oeuvre of artists like John Currin, whose most recent work is derived from images he obtained from pornographic websites. Calvin Tomkins, Lifting the Veil, New Yorker, Jan. 28, 2008, at 58 (containing a reproduction of a vivid painting of a group of pubescent females pleasuring themselves sexually).
Widespread legislative concern with child pornography as an American problem did not emerge until the late 1970s. Adler, supra, at 230. Earlier, the use of children in pornography was regulated by the same laws as governed obscenity and the adult pornography industry. Barbara Campbell, Officials Consider Child Pornography Hard to Prosecute, N.Y. Times, *380 Jan. 15, 1977, at 19. In response to growing public pressure, Congress passed the Protection of Children Against Sexual Exploitation Act of 1977. Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-52, 2256 (2006)).
Throughout the 1980s and 1990s, the courts struggled to square the guarantees of the Constitution with congressional attempts to meet what was considered to be a serious national problem in production and distribution of child pornography.
See, e.g., United States v. Williams,
— U.S. -,
2. First Amendment Exceptions
One of the prominent justifications advanced in support of the right to free speech is the need to pursue truth in a free market allowing the exchange of ideas.
See Abrams v. United States,
Exclusion of some categories of speech from First Amendment protection is premised upon the rationale that some speech, such as some forms of obscenity, does not contribute to the pursuit of truth or the exchange of political and social ideas and accordingly does not merit constitutional shelter.
Roth,
a. Obscenity
“Obscenity” originally encompassed a broad range of works — including, for instance, newspaper advertisements for massage — on the ground that they would possibly promote “impure sexual relations.”
Dunlop v. United States,
Supreme Court decisions as early as the nineteenth century acknowledged congressional power to restrict obscenity, but failed to question the underlying premise of the constitutionality of such regulation.
Dunlop,
Whether a federal or state statute regulating obscene speech violates the First Amendment was directly addressed in 1957 by the Supreme Court in
Roth,
Lower courts struggled in applying the Roth test. Susan G. Caughlin, Note, Private Possession of Child Pornography: The Tensions Between Stanley v. Georgia and New York v. Ferber, 29 Wm. & Mary L.Rev. 187, 189-90 (1987). The Supreme Court recognized its own difficulty in explicating precisely what speech is “obscene.” As Justice Potter Stewart acknowledged in his well-known concurring opinion in Jaco-bellis v. Ohio,
It is possible to read the Court’s opinion in Roth v. United States ... in a variety of ways. In saying this I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. ... I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description.... But I know it when I see it.
After over a decade of wrestling with the Roth decision, the Supreme Court constructed a new definition of obscenity in Miller, which continues to govern. Miller reworked the Roth test as follows:
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller,
Miller incorporates and clarifies a combination of earlier rather vague definitions. The reliance on “contemporary community standards” in its first prong is derived from Judge Learned Hand’s early twentieth-century definition, which asked jurors to consider local community views when determining whether a work was obscene:
If there be no abstract definition, such as I have suggested, should not the word “obscene” be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?....
Nor is it an objection, I think, that such an interpretation gives to the words of the statute a varying meaning from time to time. Such words as these do not embalm the precise morals of an age or place; while they presuppose that some things will always be shocking to the public taste, the vague subject-matter is left to the gradual development of general notions about what is decent. A jury is especially the organ with which to feel the content comprised within such words at any given time, but to do so they must be free to follow the colloquial connotations which they have drawn up distinctively from life and common speech.
United States v. Kennerley,
It is not clear whether the community described by Judge Hand referred to the city, state, other local group, or “society at large” at a particular point in time. Half a century later in
Jacobellis,
Justice Warren argued that the proper reference was the local community, not the nation as a whole.
Jacobellis,
Since they fall outside the ambit of the First Amendment, Congress may regulate obscene materials in some ways. The Supreme Court has approved federal and state criminal statutes regulating the
distribution
of obscene materials.
Miller,
Justice Marshall addressed the distinction in
Stanley;
while the states and the federal government both have an important interest in regulating the
commercial
distribution of obscene material, they do not have the same interest in controlling the right to receive information and ideas.
Stanley,
b. Sexually Onented Expression
Difficulties in defining obscenity out of First Amendment protection are earned over to other forms of sexually oriented expression.
See, e.g., Schad v. Borough of Mt. Ephraim,
Under
O’Brien,
a regulating ordinance may be valid if (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the government interest is unrelated to the suppression of free expression; and (4) the restriction is not greater than is essential to the furtherance of the government interest.
Id.
at 377,
While the speech regulated by federal obscenity and child pornography laws is deemed unprotected by the First Amendment, there are similarities with regulations concerning expression such as nude dancing. The secondary effects of private viewing of nude dancing in one’s home probably does not raise crime rates, lower property values, or lower the quality of the city’s neighborhoods. The Supreme Court in
Stanley v. Georgia
found no grounds to uphold regulation of private possession of constitutionally unprotected speech.
c. Child Pornography
The law governing child pornography has developed differently from that controlling adult pornography. Not all adult pornography is obscene, and only that which is obscene may be constitutionally regulated.
See generally Miller,
Private possession of child pornography may thus be criminalized, even if private possession of obscene materials may not.
Compare Osborne,
Over the past thirty years, Congress has substantially and repeatedly strengthened criminal laws prohibiting the production, dissemination, promotion and possession of child pornography. The first federal statute prohibiting the use of children in pornographic materials, The Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-52, 2256 (2006)), was limited to matter determined to be obscene by a jury under
Miller.
Federal anti-child pornography statutes have since been amended nine times. In 1982, the Supreme Court determined that child pornography could be categorically excluded from the domain of First Amendment protection, regardless of whether the speech was obscene.
Ferber,
The growth of the Internet has intensified legislative and executive branch attention. Federal prosecutors have now virtually abandoned prosecutions for adult obscenity, but increased prosecutions involving children.
See, e.g.,
Jason Krouse,
The End of the Net Pom, Despite Big Talk Federal Efforts Against Adult Obscenity Online Have Withered,
2008 A.B.A. J. 52, 55 (Feb.2008) (noting that of federal attorneys contacted, “not one said it had any inclination to pursue anything other than child obscenity eases.”). The FBI has made “cybercrime,” most of which is child pornography, its “third-highest priority behind counterterrorism and counterintelligence.” Jerry Markon,
Crackdown on Child Pornography: Federal Action, Focused on Internet, Sets Off a Debate,
Wash. Post, Dec. 15, 2007, at Al. Many states have followed suit, creating legislation criminalizing the distribution, promotion, production, and possession of child pornography.
Osborne,
Expansive regulatory and enforcement efforts have not gone without criticism.
See, e.g., United States v. Williams,
Courts have struck down legislative provisions dealing with child pornography that have gone too far.
See, e.g., Connection Distributing Co. v. Keisler,
The perceived importance of implementing legislation to curb the exploitation and harm of the nation’s children is substantial. The lengths to which Congress and the States have gone to achieve this purpose require evaluating fundamental rights.
See
U.S. Const, amend. I;
Williams,
G. Search and Seizure
Two Fourth Amendment issues are raised by the government’s investigation of Polizzi: (1) whether Polizzi had a reasonable expectation of privacy in the personal, identifying information he submitted to Time Warner Cable in order to receive Internet service so as to render unconstitutional the government’s administrative subpoena to Time Warner to obtain Poliz-zi’s identity; and (2) whether the government had probable cause to support a federal judicial search warrant of Polizzi’s home because of Internet activity linking him to a child pornography website. See Part II.B.l, supra.
Because these issues have not been timely raised by the parties, this court has limited information as to the details of the investigation leading to Polizzi’s arrest. By failing to make a pretrial motion to suppress and by not including any such argument in his pending Rule 33 motion, defense counsel seems to have conceded that there was no Fourth Amendment violation. The issue is discussed now to avoid a subsequent collateral challenge to the judgment on the ground of inadequacy of counsel or of an error so egregious that the court should have raised it on its own motion.
Obtaining Polizzi’s identity without a warrant from Time Warner, his Internet Service Provider (“ISP”), did not violate any reasonable expectation of privacy under federal law. It is only remotely possible that there was an insufficient basis for a finding of probable cause for the judicially issued search warrant for his home and computers. Despite the importance of Fourth Amendment issues potentially involved in an investigation leading to a computer-based prosecution, the present case does not provide a basis for a finding of a search and seizure constitutional violation. The issue is touched on below.
1. Summary of Relevant Facts
Multiple searches were conducted by law enforcement agents in the investigation leading to Polizzi’s arrest. See Part II.B.1, supra. Two federal judicial warrants were issued to seize computer equipment with connections to the targeted *387 child pornography website “Hardcore,” and a third for Polizzi’s home and electronics. See id.; Govt-’s Letter 1-2, Mar. 19, 2008, Docket Entry No. 136. Much of the investigation in the case was the result of good detective work requiring no judicial warrants. See Part II.B.l, supra. The only warrantless physical “search” was that of Polizzi’s ISP subscriber information, which was obtained by the FBI using an administrative subpoena. See id.; Govt.’s Letter 1-2, Mar. 19, 2008. Polizzi’s arrest several months after the judicially authorized search of his home occurred pursuant to a court-ordered arrest warrant. See Part II.B.l, supra.
After identifying a child pornography site from an unsolicited tip from a layperson and running down the probable source and destinations of the pornography, agents obtained and executed a federal judicial search warrant on the site’s web host to seize hard drives containing the site’s contents. See id. Pursuant to a second federal judicial search warrant, agents seized other hard drives at a different location containing the site’s financial information and credit card history. See id. The website’s content hard drives revealed, after analysis, access log records listing the Internet Protocol (“IP”) addresses for 1,900 unique users. See id. The IP address eventually linked to Poliz-zi’s computer had used the website enough times to create an eight-page access log. See id. Through reliance on a relatively simple technology — a “who is ?” query— the ISPs providing the logged IP addresses were identified and administratively subpoenaed to disclose the identities of the users of these addresses. See id. A computer registered to Polizzi’s Time Warner Internet account was determined to be one such user. See id.
Agents then obtained and executed a judicially-issued search warrant for Poliz-zi’s home, seeking computer equipment and evidence related to the possession of child pornography. See Parts II.B.1-2, supra. Over 5,000 images of child pornography were found on Polizzi’s computers and exterior hard drives after seizure and analysis. See Part II.B.2, supra.
2. Fourth Amendment
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV (emphasis added). Government conduct, even if intrusive in the ordinary sense, is not considered a “search” or “seizure” within the meaning of the Fourth Amendment unless the person targeted has “a reasonable expectation of privacy” in the places searched or items seized.
See Kyllo v. United States,
When government authorities wish to conduct a search or seizure of a person or object where a reasonable expectation of privacy does exist, they generally must first obtain a warrant from a judicial officer. To obtain a judicial warrant, the government must demonstrate probable cause. Probable cause requires a
*388
‘“fair probability,’” under the totality of the circumstances, “ ‘that contraband or evidence of a crime will be found in a particular place.’ ”
United States v. Grubbs,
Even in circumstances where a judicial search warrant is not required, the government must satisfy some formal process — usually that required to obtain a subpoena — before interfering with a person’s privacy in a targeted way.
See, e.g.,
Fed.R.Crim.P. 17(a), (c) (providing that the government may compel a third party to produce documentary evidence and other objects by way of a subpoena issued in a criminal “proceeding” “by the clerk under the seal of the court.”). When no Fourth Amendment interests are implicated, a “case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued.”
United States v. Miller,
Applicable statutes can suggest whether an expectation of privacy is reasonable. For the online world, one statute, the Electronic Communication and Privacy Act (“ECPA”), 18 U.S.C. §§ 2510-2711, is particularly important to the legitimacy of government warrants and subpoenas. The ECPA was enacted in 1986 in order to “update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.” S.Rep. No. 99-541, at *1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555; see Mark Elmore, Big Brother Where Art Thou, Electronic Surveillance and the Internet: Carving Away Fourth Amendment Privacy Protections, 32 Tex. Tech L.Rev. 1053, 1065-66 (2001) (describing origins of the Act). “[The] ECPA provides the statutory framework governing the interception of electronic communications under the Wiretap Act [Title I of the ECPA] and access to stored electronic communications under the SCA [Stored Communications Act].” Katherine A. Oyama, E-mail Privacy After United States v. Councilman: Legislative Options for Amending ECPA 21 Berkeley Tech. L.J. 499, 499-500 (2006). In general, the ECPA grants the government broad liberty to search online materials by defining electronic privacy narrowly. It allows the government to obtain IP addresses through the use of administrative subpoenas; no warrant is required. A warrant is necessary, however, to obtain the contents of an electronic communication.
S. Reasonable Expectation of Privacy
The ECPA was enacted before the Internet was commonly used and this chronology may affect expectations of privacy. If Polizzi had a reasonable expectation of privacy in the subscriber information he submitted to Time Warner to establish his Internet account, then the FBI’s warrant-less administrative subpoena of Time Warner would have been unconstitutional, despite any ECPA provisions to the contrary. But under federal law such an expectation on his part would not have been reasonable.
*389
There is “no talisman” for determining whether a privacy expectation is objectively reasonable.
See O’Connor v. Ortega,
The Court has been more inclined to find a privacy interest reasonable when a person has the right or practical ability to exclude others and has regularly, or at least deliberately, exercised that right.
See Kyllo,
If the asserted zone of privacy is ordinarily exposed to, or readily accessible by, others, a legitimate privacy interest may be found lacking.
See Florida v. Riley,
Under the “envelope-content” doctrine, a person who reveals information to a third party may nonetheless maintain a legitimate privacy interest in the data if it is of a substantive nature or otherwise qualifies as “content,” and the third party is utilized merely to deliver the information or facilitate its communication.
See Katz,
Statutes have been considered by the Court as bearing on the question of whether society accepts a subjective privacy expectation as reasonable.
See, e.g., Miller,
Of particular relevance is the EPCA, considered in evaluating privacy expectations in information submitted to ISPs.
See United States v. Hambrick,
A Third-Party and Envelope-Content Doctrine
Both the third-party and the envelope-content doctrines weigh heavily against the reasonableness of any expectation of privacy that Polizzi may have had in the information used to ferret him out. Polizzi voluntarily gave Time Warner, a third party, his personal information necessary to obtain the ISP’s services. IP “addresses” are generally considered envelope — not content — information. Information knowingly disclosed to a third party generally falls outside of the protections of the Fourth Amendment under the “third-party doctrine.” Through disclosure, a person takes the risk that a third party may share the information with the government, defeating any asserted privacy interest.
See Smith,
[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if *391 the information is revealed on the assumption that it ’«'ill be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
Miller,
The envelope-content doctrine operates as an exception to the otherwise broad coverage of the third-party rule. If the information disclosed can be properly characterized as “content” due to its substantive nature (i.e., not intended for recordkeeping or instructional purposes), and the third party is not the designated recipient but is employed as a professional provider of transmittal services to forward the information to some other party, constitutional privacy protections apply to the contents.
See Katz,
The Supreme Court has applied the third-party doctrine to find no expectation of privacy in information submitted to a business or public utility in order to maintain an account or receive some service.
See Miller,
Although the Supreme Court has not yet directly indicated whether a person has a reasonable privacy interest in personal information submitted to ISPs in order to receive Internet and email service, the reasoning of
Miller
and
Smith
supports the conclusion that no such reasonable expectation exists. In
United States v. Hambrick,
5. Electronic Communication Privacy Act
Continuing the envelope-content distinction, the ECPA provides less protection to “[rjecords concerning electronic communication service[s]” than to the “contents of [an] electronic communication.” See 18 U.S.C. § 2703. It affords different levels of protection to electronically transmitted information depending on the type of information and the method by which it is accessed by the government or another third party. Two general trends are observable: (1) content receives greater protection than non-content information, and (2) more formal process is required to intercept or otherwise unilaterally retrieve information than to receive it directly from an electronic communication service.
The most security against government interception is accorded to substantive communications. See § 2511(l)(a); § 2510(4) (defining “intercept” as the “acquisition of the contents of any ... electronic ... communication” (emphasis added)). Interception must be conducted pursuant to a judicial surveillance order based on findings of probable cause and upon a showing that alternatives are not readily available. See §§ 2516, 2518(1)(c), (3); see also Orin S. Kerr, Internet Surveillance Law After the USA PATRIOT Act: The Big Brother That Isn’t, 97 Nw. U.L.Rev. 607, 621 (2003) (describing an intercept order as a “super search warrant” (quotation omitted)). By contrast, stored communications generally may be obtained through a warrant, or through an administrative subpoena if prior notice is given to the subscriber. §§ 2703(a), (b), (d).
A properly issued administrative subpoena does not require probable cause or judicial approval. See Oyama, supra, at 508 (citing Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L.Rev. 1264, 1284 (2004)). It is sufficient to show “specific and articulable facts” for believing the communications sought are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d); see also Solove, supra, at 1284 (describing how the federal subpoena power has been analogized to a “blank check”).
The least protection is afforded to ISP subscriber information retrievable from the user’s electronic communication service. This information may be obtained, without providing any notice, by administratively subpoenaing the service:
A provider of electronic communication sermce[s] ... shall disclose to a governmental entity the — (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service ...; (E) telephone or ... other subscriber number or identity, including any temporarily assigned network address; and (F) means and *393 source of payment ... (including any credit card or bank account number) of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute [or acts pursuant to other specified means].
18 U.S.C. § 2703(c)(2) (emphasis added). In an emergency, an electronic communication service may “divulge” to a governmental entity both record information and the contents of a communication. See, e.g., 18 U.S.C. § 2702(b)(7) (“appear to pertain to the commission of a crime”); § 2702(b)(8) (“an emergency involving danger of death or serious physical injur/’); § 2702(c)(6) (“National Center for Missing and Exploited Children”).
The Supreme Court and the Second Circuit Court of Appeals have not addressed the constitutionality of § 2703 of the ECPA or related sections addressing the retrieval by the government of electronically communicated information through means other than interception. Other courts have used the ECPA as additional justification to uphold warrantless subpoenas of ISP subscriber information. In
Freedman,
the district court cited three factors in concluding that an ISP subscriber lacked a legitimate privacy interest in his account information: (1) “the distinction between the content of electronic communications, which is protected, and non-content information ... which is not;” (2) the service agreement between the subscriber and ISP, putting the subscriber on general notice of the possibility of disclosure; and (3) the language of the ECPA, which expressly permits ISPs to disclose subscriber information to nongovernmental third parties and also to the government, under restrictive conditions.
See Freedman,
It was reasonable for the law enforcement officers investigating Polizzi’s activities to conclude that they did not need a valid judicial search warrant to obtain his subscriber’s identity from Time Warner, even if the defendant “believed that [Time Warner] would not disclose his identity.” See id.
Neither would the government have needed a judicial warrant to obtain Polizzi’s email address.
See United States v. Forrester,
Nos. 05-50410, 05-50493,
ISP subscriber information is conveyed
to
a service provider in order to be used by the provider, whereas the body of an email is conveyed
through
a service provider, for consumption by some other party, as directed by the sender’s specification of email addresses. Courts have generally found a reasonable expectation of privacy
*394
in the email messages themselves.
See, e.g., Maxwell,
Polizzi’s Fourth Amendment rights were not violated by the government’s warrant-less administrative subpoenaing of identifying information he submitted to Time Warner.
6. Probable Cause for Search of Home
In order to lawfully search Polizzi’s home for evidence of child pornography, law enforcement officers had to obtain a search warrant from a neutral judicial officer to comply with the Fourth Amendment. A judicial warrant must be issued “if there is probable cause to search for and seize ... property,” Fed.R.Crim.P. 41(d)(1), which is defined as “contraband, fruits of crime, or other items illegally possessed” or “property designed for use, intended for use, or used in committing a crime.” Fed.R.Crim.P. 41(c)(2)-(3). The warrant must describe with particularity the place to be searched and the items to be seized. “There must be a showing of probable cause to believe that the items are at the place or probable cause against a suspect and a probability that the items are at a place controlled by the suspect.” Moore’s Federal Practice, Criminal Procedure § 641.11. Because “search warrants are directed not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of crime will be found[, ... t]he owner of the property searched need not be suspected of having committed a crime, and property of a person absolutely innocent of any wrongdoing may nevertheless be searched under a valid warrant.” Id. Authorization to search a suspect’s home may be obtained even without direct observation of criminal behavior at the home. Id.
No higher standard is required for materials alleged to be presumptively protected by the First Amendment.
New York v. P.J. Video, Inc.,
In the instant case there was sufficient basis for a finding of probable cause to issue a judicial warrant for the search of Polizzi’s residence and computers. The IP address found on Hardcore’s hard drives that was eventually linked to Polizzi’s computer had accessed the paid-members-only website enough times and downloaded enough images to create an eight-page log. In
United States v. Lacy,
There remains a tension between the public’s sense of Fourth Amendment protections and the intense forensic searches of the Internet for violators of child pornography laws. As Judge Chin described this sense of disquiet in Perez,
On the one hand, child pornography and the sexual abuse of children are crimes that have been fueled by the internet. ... On the other hand, when law enforcement gathers information about the activity of individuals on the internet, the potential for unreasonable intrusions into the home — the chief concern of the drafters of the Fourth Amendment — is great. This case demonstrates the tension that can exist: the Government argues, in essence, that it had probable cause to search the homes and seize the computers of thousands of individuals merely because they entered their email addresses into a website where images of child pornography were available, even without any proof that the individuals uploaded, downloaded or discussed the images, or otherwise participated in the website.
*396 7. Policy Considerations
Whether in the online context Fourth Amendment doctrine, both case law and statutory interpretation, sufficiently protects the average citizen’s “reasonable” privacy expectations is unclear. Most protections are construed narrowly in order to reduce any expectation of privacy in much of what a person does or says online. This construction may not comport with contemporary practices and popular conceptions. Anecdotal evidence of the kind of foolish and flip statements made in many emails, which come back to haunt the writer, strongly imply that when the author hits the send key, there is an expectation that the only person who will view this information is the intended recipient. This understanding may be even stronger when a person uses his own computer to relay the information and acts within the exclusivity of his own home — that cherished bastion of privacy and security.
See Reid,
To peremptorily exclude this method of communication from the protections of the Constitution, because it does not follow the formalities of eighteenth-century communication by letters utilizing sealing wax and signet rings of the wealthy, seems out of place in a modern democracy such as ours which favors privacy as well as almost universal freedom of communication. There is probably still a residual belief among some in this country that gentlemen and ladies do not read other’s mail— or email. See Respectfully Quoted: A Dictionary of Quotations 287 (Suzy Platt, ed., 1989) (quoting Henry Lewis Stimson, Secretary of State under President Herbert Hoover).
It seems unrealistic and impolitic to deny Fourth Amendment privacy rights on the ground that the information communicated is not substantive in nature, given that people may not distinguish, in any meaningful way, between content and envelope information in the Internet context. It may be impossible to make a clear distinction; certain online information, such as email subject headings and Internet search queries, may arguably qualify as either or both. Cf. Lawless, supra, at 18-21 (noting difficulty of applying the content-envelope distinction to Internet search records given the sheer variety of inquiries and complexity of information exchange dynamics).
Law enforcement agencies and their sources of information cannot always respect this distinction in practice. See, e.g., Eric Lichtblau, Through an Error, FBI Gained Unauthorized Access to Email, N.Y. Times, Feb. 17, 2008, at 1 (describing instances where the FBI mistakenly gained access to content information: “A technical glitch gave the FBI access to the e-mail messages from an entire network— perhaps hundreds of accounts or more— instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation .... A report in 2006 by the Justice Department inspector general found more than 100 violations of federal wiretap law in the two prior years by the Federal Bureau of Investigation, many of them considered technical and inadvertent.”). Whether information is characterized as content or non-content often must be determined not ex-ante but ex-post after it is *397 obtained, since the information cannot be qualitatively assessed until it is actually reviewed. Cf. id. at 18-19. The long history of the third-party doctrine — removing constitutional protection to information disclosed to a third party on the ground that the third party has the technical ability to disclose the information to the government — may not be compatible with the typical expectations of the general populace, notwithstanding its sophistication and computer sawiness.
Given the present state of the law, there is no ground to strike the forensic evidence in the instant case, particularly since a motion to suppress on Fourth Amendment grounds was not timely made.
H. Separation of Powers
The Framers of the Constitution deliberately divided the powers of government among the three separate branches: the executive, legislative, and judiciary.
See
U.S. Const, art. I, § 1, art. II § 1, art. Ill § 1. It “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”
Youngstoim Sheet & Tube Co. v. Sawyer,
Two decades ago, federal Sentencing Guidelines developed in the name of consistency, uniformity, and fairness stripped trial judges of much of their historical discretion and mandated a somewhat robotic application of rigid, highly complex rules. In 2005 the Supreme Court restored broad judicial discretion in
United States v. Booker,
There is a current concern that statutory mandatory mínimums have shifted too much power from the judiciary to the executive. Justice Kennedy has declared:
Under the federal mandatory minimum statutes a sentence can be mitigated by a prosecutorial decision not to charge certain counts. There is debate about this, but in my view, a transfer of sentencing discretion from a judge to an Assistant U.S. Attorney, often not much older than the defendant, is misguided. Often these attorneys try in good faith to be fair in the exercise of discretion. The policy, nonetheless, gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from the trial judge. The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way. Most of the sentencing discretion should be with the judge, not the prosecutors.
Anthony M. Kennedy, Address at the American Bar Association Annual Meeting (Aug. 9, 2003);
cf. United States v. Sanco Grant III,
Justice Breyer has also voiced his concerns that mandatory minimum sentences are not only responsible for a shift in power away from the courts, but also have acted to undercut the current sentencing regime:
Mandatory minimum sentences are fundamentally inconsistent with Congress’ simultaneous effort to create a fair, honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory mandatory mínimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency. They rarely reflect an effort to achieve sentencing proportionality — a key element of sentencing fairness that demands that the law punish a drug “kingpin” and a “mule” differently. They transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who thereby have reintroduced much of the sentencing disparity that Congress created Guidelines to eliminate.
Harris v. United States,
1. Mandatory Mínimums Historically and Today
“Since the beginning of the Republic, Congress and the States have enacted mandatory sentencing schemes.”
Harmelin v. Michigan,
The 1951 Boggs Act created the first modern day federal mandatory minimum sentences, five- and ten-year terms for certain drug offenses. Pub.L. No. 82-255, 65 Stat. 767 (1951) (repealed 1970). In 1970, Congress repealed almost all federal mandatory minimum sentences for drug offenses as part of the Comprehensive Drug Abuse and Control Act of 1970. See Sentencing History Repeating?, FAMM-Gram (Families Against Mandatory Míni-mums), Spring 2007, at 1. Beginning in the mid-1970s, states began experimenting with higher maximum sentences, more use of statutory mínimums, and long fixed sentences for repeat offenders. See, e.g., Mich. Comp. Laws § 333.7401 (1978) (repealed 1998) (establishing a mandatory minimum penalty of life without parole for delivery of 650 grams of heroin or cocaine); 1973 N.Y. Laws 276, 277, 278, 676 (collectively known as the Rockefeller Drug Laws, establishing mandatory minimum sentences of fifteen years to life for certain drug offenses). Mandatory mínimums on the federal level were readopted by Congress in 1986. Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207 (codified as amended at 21 U.S.C. § 801 (2006)).
Today, federal statutory mandatory mínimums are common for drug crimes, firearm possession, and sex offenses. See Appendix C, infra; Adam Walsh Child Protection and Safety Act, Pub.L. No. 109-248, 120 Stat. 587 (2006) (increasing mandatory mínimums for violent crimes against children, sex trafficking of chil *399 dren, and sexual offenses against children); Child Pornography Prevention Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996); Anti-Drug Abuse Act of 1986 (imposing five- and ten-year mandatory minimum terms of imprisonment for possession of certain quantities of crack cocaine); Armed Career Criminal Act of 1984, Pub.L. No. 98-473, 98 Stat. 2185 (1984) (requiring imposition of a 15-year prison sentence for an individual with pri- or serious drug or violent felony convictions); 18 U.S.C. § 924(c)(1) (providing increasing mandatory minimum sentences for firearms use in connection with drug transactions and violent crimes); 21 U.S.C. § 841(b)(1) (prescribing five- and ten-year minimum sentences for various offences of drug manufacture and distribution); 21 U.S.C. § 960(b) (penalizing the importation and exportation of certain drugs by five- and ten-year minimums).
2. The Judiciary’s Power Under Article III
Article III of the Constitution reserves to the judiciary the power to decide all “cases” and “controversies.” U.S. Const, art. Ill, § 2. In
Mistretta,
the Supreme Court recognized that while the separation of powers is “essential to the preservation of liberty,” the Framers did not intend for the three branches to remain autonomous.
Mistretta,
Extensive use of mandatory minimums has created grave problems in criminal justice system administration. Under these statutes, a defendant convicted of a particular crime faces what is sometimes an unnecessarily harsh sentence which the judge is powerless to adjust. These minimums are sometimes out of proportion to penalties set by otherwise controlling guidelines. In practice, the bounded discretion of judges is replaced with the unbounded discretion of the prosecutor to choose whether to charge a crime subject to a mandatory minimum or waive the minimum.
Statutes that impose mandatory minimums shift the power to sentence largely to the legislative and executive branches. With mandatory minimum sentencing programs, the legislative branch effectively decides on punishment.
See
Buescher,
supra,
at 1066-67. The executive has nearly exclusive power to decide to bring a charge that carries with it a mandatory minimum sentence, and to determine whether a judge can consider the defendant’s cooperation significant enough to warrant a downward departure.
Id.
If a defendant is found guilty of a crime that carries a statutory minimum sentence, and the prosecutor has determined that he or she should not be eligible for a downward departure, a judge has no discretion but to impose at least the mandatory minimum sentence.
But cf. United States v. Sanco Grant III,
The combination of mandatory minimum penalties, rigid guidelines, elimination of parole, and reduced use of probation or other nonincarceratory sanctions has resulted in the United States punishing of *400 fenders much more severely than other nations and having more people per capita in prison. The cost has been unnecessarily great to offenders, their families, the community, the corrections system, and taxpayers.
3. Congress Has the Power to Enact Mandatory Mínimums
Whatever their impolitic nature, statutory mandatory mínimums are presumptively constitutionally valid. “One of the first principles of constitutional adjudication [is] the basic presumption of the constitutional validity of a duly enacted state or federal law.”
San Antonio Independent School District v. Rodriguez,
Though mandatory minimum penalties may be unsoundly aggrandizing the power of the executive and legislative branches, the Supreme Court and Second Circuit Court of Appeals precedents establish that the power to sentence does not lie in the hands of the judiciary alone. Since the initial institution of the practice of widespread imprisonment in the United States, the legislature has assumed major responsibility for prescribing periods of incarceration for offenses.
See Grayson,
[T]he authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided, belongs to the executive department.
Ex Parte United States,
The Court of Appeals for the Second Circuit has expressly recognized that sentencing is not a power solely within the confines of the judicial branch:
“Sentencing is not inherently or exclusively a judicial function,” Geraghty,719 F.2d at 1211 , and “the sentencing function long has been a peculiarly shared responsibility among the Branches of government and has never been thought of as the exclusive constitutional province of any one Branch.” Mistretta,109 S.Ct. at 664 (citing United States v. Addonizio,442 U.S. 178 , 188-89,99 S.Ct. 2235 ,60 L.Ed.2d 805 (1979)). In Mistretta, the Supreme Court reaffirmed that “the scope of judicial discretion with respect to a sentence is subject to congressional control.”109 S.Ct. at 650 (citing Ex parte United States,242 U.S. 27 ,37 S.Ct. 72 ,61 L.Ed. 129 (1916)). In *401 fact, as appellant concedes, Congress can constitutionally eliminate all discretion in sentencing judges by establishing mandatory sentences, id. at 650-51, and thus has the power to preclude sentencing judges from giving any consideration to a defendant’s cooperation.
United States v. Huerta,
To the extent the decision to charge crimes carrying mandatory minimum sentences allows the Executive Branch to exercise some control over a defendant’s sentence, that control continues to derive from legislative decisions that are well within Congress’s authority to make. See Mistretta v. United States,488 U.S. at 364 ,109 S.Ct. 647 . Accordingly, this panel has no reason to revisit Huerta’s holding that imposition of a mandatory minimum sentence does not violate separation of powers.
Vargas,
In
Vargas
the defendant argued that
Booker,
I. Analysis of the Statute
Scholars conclude that the Supreme Court has adopted two main methods of analyzing statutes under the separation of powers doctrine: functionalism and formalism. Buescher, supra, at 1080; Peter L. Strauss, Symposium: Bowsher v. Synar: Formal and Functional Approaches to Separation of Powers Questions —A Foolish Inconsistency?, 72 Cornell L.Rev. 488, 489 (1987).
The functional approach, as adopted by the majority in
Mistretta,
inquires whether “one branch ... assumes a function that is more properly entrusted to another.” Buescher,
supra,
at 1084 (quoting
INS v. Chadha,
The formalist approach, as exemplified by the majority opinion in Chadha, is more rigid. It invalidates a law that does not keep a branch within its “prescribed sphere of power,” allowing less commingling of functions. Buescher, supra, at *402 1080. This approach requires a two-step analysis: first, characterizing the power being exercised, and second, determining whether that power is within the appropriate branch. Id.
In evaluating sentencing statutes, the Supreme Court has employed a functional approach.
See Mistretta,
[WJhile our Constitution mandates that “each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others,” the Framers did not require— and indeed rejected — -the notion that the three Branches must be entirely separate and distinct.
Id.
at 380,
The Court of Appeals for the Second Circuit has also applied functionalism in assessing sentencing statutes for violations of the separation of powers doctrine.
See Huerta,
A conviction for receiving child pornography under 18 U.S.C. § 2252(b)(1) requires a mandatory minimum sentence of five years’ imprisonment. This minimum was established by the legislature in a 1986 amendment. Pub.L. No. 99-500, 100 Stat. 1783-75 (1986); Pub.L. No. 99-591, 100 Stat. 3341-75 (1986). It was charged by the executive in the form of the United States Attorney. See Superseding Indictment, Mar. 8, 2007, Docket Entry No. 35. Applying the functional analysis to the statute in this case would render no different result than that in Huerta and Vargas. On the basis of current precedent, a court may not declare the mandatory minimum sentence applicable in the instant case unconstitutional on separation of powers grounds.
I. Jury Finding of Predicate Facts
Imposing the mandatory minimum sentence of five years would not violate the jury’s required role in findings providing a basis for sentencing enhancement. Assuming the statute is valid, the jury found proven beyond a reasonable doubt all the predicate facts necessary to warrant the minimum sentence prescribed by 18 U.S.C. § 2252(b)(1).
The jury’s required role in finding facts necessary to support a criminal conviction and a basis for sentencing enhancement is prescribed by the Fifth and Sixth Amendments. The Sixth Amendment provides that in criminal proceedings, “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const.
*403
amend. VI. The Fifth Amendment guarantees that no one will be deprived of “life, liberty, or property ... without due process of law.” U.S. Const, amend. V. Together these Amendments require “criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”
United States v. Gaudin,
Mandatory minimum sentences represent a rigid, numerical approach to offenses that vary enormously in extent and culpability, even for violations of the same statutory provision. Former wooden application of the Sentencing Guidelines, a semirigid approach, has now been rejected by the Supreme Court.
See Gall v. United States
, — U.S. -,
In 2005, the Supreme Court considered whether the Sixth Amendment is violated “by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact ... that was not found by the jury or admitted by the defendant.”
Booker,
The defendant in
Booker
was charged with possession with intent to distribute at least 50 grams of crack cocaine base.
Id.
at 227,
Booker
held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt.”
Id.
at 244,
In 2007 the Court reaffirmed
Booker's,
rationale and emphasized sentencing court discretion by rejecting the Eighth Circuit’s rigid, numerical “proportionality test” based upon the Guidelines.
Gall,
None of these recent cases put in question application of a minimum statutory requirement effective on a general finding of guilt. Neither the Fifth nor Sixth Amendment required a further jury specific finding of predicate facts in addition to the general verdict finding Polizzi guilty as charged. In its general verdict, the jury found all the operative facts necessary to constitute a crime which requires a five-year sentence. See 18 U.S.C. § 2252(b)(1).
IV. Unconstitutional Refusal to Inform Jury of Mandatory Minimum Incarceration
Defendant’s request that the jury be informed of the five-year mandatory minimum should have been granted. A brief historical review demonstrates the right of the jury in this case under the Sixth Amendment of the Constitution to know the sentencing impact of its decision — a right shared by the defendant.
Two distinguished interpreters have noted that “translation is a dialogue between two languages.” Richard Pevear & Laris-sa Volokhonsky, Preface to Leo Tolstoy, War and Peace xiv (Richard Pevear & Larissa Volokhonsky trans., 2007). It might similarly be said that in construing the Sixth Amendment courts are engaged in a conversation across four centuries— the eighteenth, nineteenth, twentieth, and twenty-first — about the meaning of this grand constitutional provision.
A district judge faced with current constitutional issues might prefer a nuanced interpretative technique such as that of Justice Breyer, which takes account of significant historical changes in sociology, technology, politics and legal systems. See Essay, The Role of Judges in a Government Of, By, and For the People, 30 Cardozo L.Rev. (forthcoming 2008) (“Justice Breyer’s nuanced view of the need for flexibility in interpreting the Constitution makes him a ‘member’ of the American Metaphysical Club, allowing for a more pragmatic and effective administration of justice than a stiff and abstract approach” (citing Stephen Breyer, Active Liberty: Interpreting our Democratic Constitution (2006))).
A majority of the Supreme Court now favors another method. Under Justice Scalia and the Court’s approach to the Sixth Amendment, judges must look to criminal practices of the Thirteen Colonies and England in 1791, when the amendment was adopted.
See
Parts III.I,
supra,
and IV,
infra
(discussing effect of current hearsay and sentencing decisions of the Supreme Court). Judges today must largely put aside the caveats of Professor Julius Goebel, Jr. and other historians about difficulties in understanding the vagaries of colonial practice.
See, e.g., Unit
*405
ed States v. Khan,
Interpreting and extrapolating from the eighteenth century is particularly difficult since original materials are hard to come by and the technological, political, and legal contexts in each of the Thirteen Colonies were then so different from what they are today. Yet it appears fairly clear, from a review of legal and historical scholarship on eighteenth-century colonial and English criminal practice, that the petit juries of 1791 would have been aware of any harsh sentence imposed mandatorily upon a finding of guilt of a particular crime. It is equally apparent that a jury so apprised would have been expected to deliver a verdict of not guilty or of guilty of a lesser crime had it believed the punishment excessive for the crime actually charged and proved.
A. History and Context of Sixth Amendment
The Sixth Amendment was adopted in 1791 as one of the first matters of business of the new republic, guaranteeing the right of a defendant “[i]n all criminal prosecutions ... [to] trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const, amend. IV. It was then understood that the jury had the power to refuse to convict even if the facts and law indicated guilt. In later years this fundamental power of the jury — and the right of the accused— has been termed the power to “nullify.” The negative connotations of this characterization of the jury’s power and responsibility ignore history and the meaning of the Sixth Amendment.
When a jury refuses to convict on the basis of what it thinks is an unjust law as applied, a misconceived prosecution, or an excessive penalty, it is performing exactly its role imposed by the Sixth Amendment. As the following discussion demonstrates, these powers of the jury were exercised consistently by jurors before, and for many years after, the Sixth Amendment was adopted. See, e.g., Appendix A, infra; Jeffrey Abramson, We, The Jury: The Jury System and the Ideal of Democracy 30-31, 63-64, 67-77 (1994); The Complete Juryman: Or, a Compendium of the Laws Relating to Jurors 194-202, 246-47 (1752); Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine 13-63 (1998); William L. Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy 62-72 (1st ed.2002); The English-mans Right: A Dialogue Between a Barrister at Law and a Jury-Man 10-35 (1680); Norman J. Finkel, Commonsense Justice: Jurors’ Notions of the Law 24-31 (1995); Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800, at 153-99 (1985); John Hostettler, The Criminal Jury Old and New: Jury Power From Early Times to the Present Day 30-32, 48, 70-72, 92-103, 112-14, 121, 133-34 (2004); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 28-29 (2004); Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury 69-105 (1st ed.1999).
*406 Introduced by James Madison as a promised quid pro quo for approval of the Constitution by the people of the States, the Sixth Amendment’s right to a jury trial in criminal cases solidified and ratified the primary power of the petit jury as one of essential institutions upon which the people’s liberties would depend. It was expected to limit the kind of governmental overreaching that led to the Revolutionary War. See, e.g., Abramson, supra, at 28-29, 32 (1994); Kramer, supra, at 29-34, 70, 157; Shannon C. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence Before John Marshall 142-43 (1990).
For the Framers, there would have been no need to go back before the Magna Carta for support in the “courts of conscience.” See, e.g., Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 380 (2007). They could look to recent and contemporary juries, such as those in the well-known trials of Lilburne, Penn, and Zenger, which had refused to convict when authorities insisted that the law required them to do so.
In the mid-seventeenth century, Colonel John Lilburne had been repeatedly acquitted in England of the crime of distributing pamphlets critical of the British government. See The Trial of Lieutenant-Colonel John Lilburne, in 4 Cobbett’s Collection of State Trials 1270, 1320, 1466 (Old Bailey 1649). In his second trial he asked the jury to acquit if it found capital punishment too severe. It responded by finding him “not guilty of any crime worthy of death,” thus directly involving itself in the issue of punishment. Id. at 197. Lilburne was released and even financially compensated.
The Quakers, William Penn and William Mead, were prosecuted in London in 1670 for preaching to an unlawful assembly and for breach of the peace. Trial of Penn and Mead, in 6 Cobbett’s Collection of State Trials 950 (London, T.C. Hausard 1810). After the jury acquitted Mead of all charges and found Penn not guilty of disturbing the peace, it was deprived of food, water and heat. Despite these coercive tactics, the jury still refused to find guilt, and was fined. Some jurors, including a man named Bushell, refused to pay; they were imprisoned, until ordered released by the Chief Justice on the ground that the jury in effect determines the law when deciding by general verdict. Bushell’s Case, 124 Eng. Rep. 1606, 1012-13 (1670).
One of the most famous of the colonial cases in which juries frustrated the crown and its judges was the Trial of John Peter Zenger. See T.B. Howell, The Trial of Mr. John Peter Zenger in 17 A Collection of State Trials 675 (1735). In 1735, a jury acquitted Zenger after his counsel argued that truth was enough basis to refuse to convict even though the jury had been charged to the contrary. Anti-monarchist writings are sprinkled with encomiums for the Zenger and other defiant juries. See Parmenter, supra, at 384 nn. 53-61 and accompanying text. For other like cases, see, e.g., Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury 55 ff. (1999). The right to trial by jury incorporated in the Constitution by the Sixth Amendment was thus envisaged as a check against overreaching by the new federal government.
The power of colonial and British jurors depended in large measure upon the fact that they were from the vicinage, were well-informed and self-confident property owners, see, e.g., Randolph A. Jonakit, The American Jury System 107-09 (2003), and knew the essentials of the local criminal law and its punishments. See, e.g., Abramson, supra, at 22-29, 32, 34-35 *407 (“[J]urors did not even need to rely on a judge’s instructions to know the common law of the land”); Neil Vidmar & Valerie P. Hans, American Juries: The Verdict 49 (2007) (noting that John Adams “remarked that the common law was known by everyone and ‘imbibed with the Nurses Milk and first Air’ and that, accordingly, ‘[i]n many cases judges gave the jury no instructions on the law1 ” (quoting 1 The Legal Papers of John Adams 230 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965))).
Jury power not to convict was extensively exercised when the punishments that would be expected to follow from conviction were deemed excessive.
See, e.g., Furman v. Georgia,
It is not strange that jurors should, in the second half of the eighteenth century, know details of criminal law and punishment — matters of punishment of which many of our present jurors do not know and are deliberately kept from knowing. Criminal law then was much simpler than today, now requiring tomes of highly abstruse, convoluted definitions and extraordinary combinations of statutory prison máximums and mínimums, fines, restitu-tions, forfeitures, probationary terms, treatment for mental health and other problems in and out of prison, sentencing guidelines, caselaw and local practice. It would have been inconceivable, for example, that a New York jury of 1791 trying a child pornography video case (were there such a case) would not know — as this jury did not — that conviction required a five-year minimum term of prison and an even higher term under applicable federal guidelines. It is hardly likely that a present jury would be aware of the fact that “receiving” one illicit image called for at least a five-year term in prison while “possession” of 5,000 such depictions would permit probation.
Practice received from eighteenth-century England varied among, and within, the separate colonies. Much of it has not been, and cannot be, fully known or understood in its details. Yet modern courts cannot ignore the former predominant jury power to control sentences because judicial views beginning after the Jacksonian period have gradually eroded the influence of colonial reality.
See
Parts IV.B-C, infra;
see also, e.g., Bryant v. State,
Two authors stand out in their reliability and usefulness in understanding the colonial jury’s knowledge and control of sentencing: Julius Goebel, Jr., and John H. Langbein.
1. Goebel
Although there has been extensive recent historical research on the subject, the preeminent analysis of colonial practice continues to be that of the late Julius Goebel, Jr. (George Welwood Professor of Legal History at Columbia University School of Law) and T. Raymond Naughton (of the New York Bar): Law Enforcement in Colonial New York (1944) (hereinafter “Goebel”). Some quotations from Goebel’s seminal work demonstrate that the vici-nage and property requirements for jurors — that they be local “freeholders,” responsible men having some stake in the community — assumed the jury’s knowledge of the law and awareness of its power to control penalties.
The policy of the Province [of New York] respecting the qualifications of persons who were to do jury service was patterned on the English, that is to say, *409 freeholding was taken as the basic standard.
Id. at 466.
The English statutes had long set for petit jurors a high property qualification. This policy, which rested upon the presumed higher responsibility and intelligence of propertied persons, had found expression in a series of statutes going back to the fifteenth century. In 1699 the colonists, perhaps under the influence of a recent English act, by statute fixed upon a house with ten acres freehold in the country, a dwelling house or personal estate of £50 in New York City and Albany. This statute was continued and revived until the year 1741 when in a new and elaborate act the qualification was set at a freehold in lands, tenements or rents of the value of £60. In New York City (and later Albany) the alternative of a personal estate of like value would serve to qualify a man. As the preamble shows this was done to approximate somewhat the modern “blue ribbon” standard. A body of fairly substantial persons was assured.
Id. at 467 (footnotes omitted).
The chief obstacle [to conviction by government] was the necessity of using (even for trials at bar) juries of the vicinage who did not always convict when they should have. In many of the cases where crown rights were involved, the defendant was a person of power and standing in the community. The juries were picked from the freeholders, as we have intimated the very class most likely to entertain the reasonable doubt when a squire-in-chief was in the dock.
Id. at 221.
Freeholder opinion and conviction made the jury an instrumentality of great independence, the more to be reckoned with as the judges were many of them men of small or mediocre parts. This was perhaps the most interesting outcome of the tedious process of making trial practice conform to English models, for it contributed largely to the feeling in Revolutionary times that of all incidents of criminal justice trial by jury should remain inviolate.
Id. at 679 (emphasis added).
The several constitutions of the state [of New York] from 1777 onward have all contained the provision that trial by jury as “heretofore used” or guaranteed should remain inviolate. These words are a direct reference to the pre-Revolu-tionary practices which, musty though they be, it behooves the citizen to know.
The Charter of Liberties of 1683 [New York’s first constitution] which the Crown rejected had provided that all trial should be by twelve men, “asneer as may be peers or Equals” of the neighborhood in the country “where the same should arise and grow.” ... The [New York] Judicature Acts of 1691 and 1692 also contained provisions that no man’s rights or property should be determined (except as facts were admitted or there had been default) unless the facts be found by verdict of twelve men of the neighborhood. This safeguard was also contained in Bellomont’s judiciary ordinance. Although the jury of the vicinage was revered as a constitutional fundamental, like all fundamentals it was subject to vicissitudes for, as we have seen, summary jurisdiction was expanded, and the colonists took great pains to require a property qualification for jurors. With one detail, however, there was little tampering, viz., the necessity of trial by the vicinage. Indeed from the viewpoint of the inhabitants this was the chief raison d’etre ....
Id. at 603 (footnotes omitted).
After being tried in a well-publicized trial and found guilty of treason in 1702, Nicholas Bayard, a former commanding *410 officer of the New York militia and mayor of New York under British rule, appealed to the British Crown based on irregularities in the jury composition — i.e., the jurors’ ignorance of the law:
In his petition and “appeal” to Queen Anne, Nicholas Bayard stated among other things that he had been “convicted by an illegal petty jury of Aliens and Dutch unduely returned and very ignorant of the English Laivs and Language” .... Among the affidavits taken by John Bridges and Samson Shelton Broughton, under the Queen’s order of reference for the collection of evidence in connection with the Bayard appeal, are statements of some of the petit jurors who had joined in the verdict declaring Bayard guilty of high treason. Thomas Sanders and Isaac Stouten-bergh, two of the trial jurors, made oral statements as follows, confirming the allegations made by Bayard in his petition: “... these Depon doe owne their great Ignorance of the Laws of England at that time not knowing what was High Treason ... the Foreman ... Did assert it was High Treason ... to disturb the peace good and quiet of this Government and that Colonell Bayard had disturbed the peace by the addresses and eight or nine jurors were for clearing ... Bayard but were perswaded by the foreman.”
Id. at 604 n. 7 (emphasis added).
The impact of the Bayard case upon New York politics outlasted the lifetime of the participants, and it may be that publication of the proceedings and especially their inclusion in [Howell’s] State Trials [one preeminent source on seventeenth-, eighteenth-, and nineteenth-century case law] kept alive recollections respecting the issues over the jury. In any event, it is striking that through the rest of the colonial period the visne was treated with tenderness so that only on a few occasions was a venue changed, and then specifically because the neighborhood was prejudiced against a defendant.
Beyond the circumstances of particular cases, beyond even the colonists’ own legislation lurked the deep-seated feeling — and feeling it was — that the common law was controlling in this fundamental matter of the jury, and that nothing could avail to diminish the rights of Englishmen, even if expatriate, in respect thereto.
Id. at 605.
That colonial and British juries had great power to decide the law is demonstrated by the practice of counsel, in closing arguments, to highlight not the facts but the law of the case.
Most of the early examples of defendants’ closing ... contain little or no comment on the evidence. Neither Ni-coll nor Emott in their closing for Colonel Bayard dwelt upon the glaring omissions in the Crown’s case, but devoted themselves to a discussion of the law.
Id. at 660 (footnote omitted).
It is obvious that the jury derived most of its guidance as to the weight and effect of the evidence and as to the law from the arguments of counsel. Under these circumstances it is understandable that, as in the Makemie and the Zenger cases, the jury might encroach upon the judicial function and settle whether as a matter of law a particular accusation was a crime....
After the charge, the jury was left to deliberate on its verdict, a process which might be accomplished without [leaving the courtroom]. Usually ... the jury withdrew and a constable was sworn to attend. The constable’s oath required:
You shall well and truly keep every person sworn of this inquest together in some private and convenient Room without Meat, Drink, Fire or Candle *411 light. You shall suffer no person whatever to speak to them or any of them, neither shall you yourself speak to them or any of them unless to ... [know] if they are agreed on their verdict.
The common law apparently proceeded on the theory that conscience-searching best went forward with a little fasting.
Id. at 669 (footnotes omitted).
The jury’s right to decide the law — or rather how the law would apply to the case at bar — could take several forms. The jury could acquit an obviously guilty defendant. Through “special” or “partial” verdicts, a jury could convict, but on a lesser charge — murder becoming manslaughter and larceny shrinking from grand to its petty form. “Not infrequently the juries in New York would return special verdicts, and apparently, as we have seen in the Makemie and Zenger cases, it was regarded as the privilege of the jury to decide whether or not it would so do.” Id. at 676 (footnotes omitted).
Often juries returned special verdicts convicting on a lesser charge in order to make the defendant eligible for “benefit of clergy,” i.e., immunity from hanging. Jury lenity was often motivated by the desire to avoid conviction on a capital charge if the crime or the offender was felt not deserving of death. “[A] system of mitigated sanctioning ... by which a person convicted of a less serious crime was spared capital punishment,” the benefit of clergy allowed a first-time offender to instead be branded on the thumb. John H. Lang-bein, The Origins of the Adversary Criminal Trial 193 (2003) (hereinafter Langbein, Origins); see Goebel, supra, at 192-93. Branding, which visibly labeled a person a felon, also ensured that the convict could not again take advantage of “his once-in-a-lifetime privilege to invoke the doctrine of benefit of the clergy.” Langbein, Origins, supra, at 193. Goebel discusses such special verdicts at length:
The verdicts ... are illustrative of one of the most important aspects of the jury’s prerogative — the power to effect a mitigation in the severity of the law by verdicts which ivould let off an obvious offender with penalties less than the worst of the charges against him would make inevitable. This power was not confined to the selection of a relatively innocuous count on which to return a conviction, but extended, as indicated above, to a finding of an offense less in degree than that charged in the indictment. The importance of this rule in the case of felonies was obvious, since it was possible thus for the defendant to pray clergy and escape the rigor of the otherwise inevitable judgment of life and limb. The rule was essential where a homicide, by misadventure or in self-defense, was involved since the limitations of criminal pleading required that facts in extenuation or excuse be put in evidence and the jury give its verdict thereon....
... John Fisher was indicted in April term, 1698, for murder, but on April 7, 1698, “the jury ... finde the prisoner not guilty of murder but homicide and by misadventure and that he did not flea for it.” Huybert Vendenberg was tried on an indictment for murder on March 12, 1713/14 and “the jury find the defendant not guilty of murther but guilty of Chance Medley onley.” Jacob Koole and two others were indicted for manslaughter and were tried on October 22, 1754, when
the jurors find that the prisoners are not guilty nor is either of them guilty of the Felony charged in the indictment ... nor did either of them flie for it. But the Jurors say that the *412 prisoners did on the day charged in the indictment ... shoot and discharge a gun ... into some Reeds ... to kill a Bear ... not knowing or mistrusting that the said Cornelius Vanck was in the said Reeds ... [and that the said Cornelius was killed by three wounds] ... by misfortune and that the prisoners nor either of them had any goods or chattels to their knowledge at the time of the crime charged in the indictment ... Ordered discharged ...
A curious case was that of Frederick Locidon (Lowden?), who was arraigned on an indictment of “killing se defenden-do,” and was also arraigned on a coroner’s inquest for manslaughter. He was tried on August 3, 1764, and “the jury without going from the bar find the prisoner not guilty of manslaughter but guilty of homicide in his own defense and that he did not fly for it to their knowledge,” whereupon the court ordered him discharged.
We have noticed many cases where defendants indicted for murder were merely convicted of manslaughter. Peter Mullinder was tried on March 13, 1712/13, on an indictment for murdering Henry Clarke and “The Jury find the defendant guilty of manslaughter and that he had no goods or chattels lands or tenements at the time of the felony committed or since to their knowledge.” Patrick Kreamer was arraigned on a coroner’s inquest for the murder of Mar-tinus Cregier, and was also arraigned on an indictment for manslaughter. He was tried on both charges and “the jurors find the prisoner not guilty of murder on the coroner’s inquest and guilty of manslaughter on the indictment and that he had no goods or chattels to their knowledge.”
Another situation where mitigation could be effected were those cases where grand larceny was charged. It had long been settled in England that where an indictment charged the stealing of goods of a certain value above 12d, the jury might find the defendant guilty but could find the value of the goods to be less than 12d Verdicts of this sort were usual in New York, and there is evidence that the colonists added some variations as where persons indicted for burglary were merely found guilty of felonious stealing.
Goebel, supra, at 673-75 (footnotes omitted) (emphasis added). Upon the return of a guilty verdict, juries could also mitigate the sentencing implications for a defendant’s family. By finding an offender guilty but penniless, the jury could avoid turning his family into paupers; otherwise forfeiture of property to the crown apparently was mandatory.
The jury’s finding with respect to a convicted prisoner’s property may also have something to do with the alleviation of the law’s severity. The return as to flight, chattels and tenements was essential to establish the royal forfeitures, and the year and day in felony cases. In New York, however, we have found only three cases where the jury found goods. In 1733, Edward King was convicted of murder and the jury at Circuit found “he had no goods chattels lands or tenements at the time of the murder but what are in the coroners hands.” A convicted counterfeiter in 1756 was found to have a horse and saddle valued at £5, and John Allen, indicted in 1775 for “larceny from the person privilly was found to have a Jersey bill of credit, a Johannis and a guinea, of goods and chattels.” The failure otherwise to find chattels is not completely explained by the fact that felons were often from the poorest class. We think it likely that owing to the feeble growth of exchequer powers in New York, the juries, as a persistent matter of policy for the pur *413 pose of relieving the families of felons and the general burden of poor relief, deliberately avoided finding forfeitures.
Id. at 676 (footnotes omitted). Repeated references by juries to the lack of goods owned by the defendant prevented such forfeitures.
According to Goebel, New York juries could, in sum, provide mercy in a variety of ways:
We have spoken of the grooves in which the jury might exercise its charity: the verdict in thefts for amounts under the 12d. boundary between grand and petit larceny, and the privilege of finding manslaughter, self-defense or accident upon indictments for murder. These prerogatives the juries in New York did not hesitate to assert, and to these old and established powers of mitigation may be added, perhaps, the avoidance in New York of the incidents of felony judgment by the persistent finding of no goods or tenements. Of considerably greater significance than these possible interferences of the jury, but connected therewith in the case of verdicts for crimes of a less degree when murder, burglary, arson, highway robbery and certain others were charged, is the mitigation obtained by benefit of clergy.
Id. at 751 (footnote omitted) (emphasis added).
2. Ryder Papers
Responsible scholarship supports Goe-bel’s conclusions that an informed jury had power to refuse to convict or to convict of a lesser crime when it deemed the potential punishment excessive. See Appendix A, infra. One of the most useful windows into the eighteenth-century jury’s control over sentencing is through the notebooks of Sir Dudley Ryder, an Old Bailey criminal trial judge from 1754 to 1756 (hereinafter “Ryder”). See John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L.Rev. 1 (1983) (hereinafter Lang-bein, Ryder Sources). Judge Ryder’s trial notes reveal the jury’s knowledge of the punishments that would follow from its findings — often because judges told it precisely what they would be. Apparently other judges and juries were taking parallel courses, so that Ryder’s notes may be taken as typical. Id. at 2.
Like the early New York juries described by Goebel, London juries could precisely tailor their verdicts by acquitting, convicting of lesser crimes, or “downsizing” the amounts found to have been stolen; thus avoided were harsh punishments, such as death by hanging, hanging plus dismemberment to make afterlife more difficult, or transportation out of England to a colony as an indentured servant. By the time Sir Ryder presided, the courts and parliament had manipulated the benefit of clergy concept to mitigate the death penalty so literate males could commit, in most cases, one felony (for which their thumb was branded on conviction) without fear of the death penalty. Id. at 37-41.
A critical issue in many of Ryder’s larceny, theft, and shoplifting cases was the amount stolen, which determined whether the offender, if guilty, would live or die. At one time the defining cutoff for theft as grand larceny was a shilling:
Grand larceny, defined as theft of goods or money worth more than a shilling, was by far the most commonly prosecuted offense at the Old Bailey. Hence, in theory, practically every accused at the Old Bailey was on trial for his life. No feature of English criminal law became more notorious, or aroused more indignation, than the nominally capital character of small thefts. A seventeenth-century tractitian reproached English law in the following words, *414 which were echoed incessantly in reformist literature down into the nineteenth century: “Doest thou value the life of a man no more than so as to cut it off for the value of a garment, yea even of a pair of shoes or stockings or a shirt or any other thing above such a piece of money”?
Id. at 36 (emphasis in original). Importantly, the amount stolen was determined by the jury — not by the judge, the prosecutor, or the evidence. After 1713, when the clergy defense was withdrawn by law from shop and home thefts of forty shillings or more, jury valuations for property taken of exactly thirty-nine shillings (or four shillings and ten pence, for five-shilling capital crimes) increased, allowing defendants to pray clergy and avoid the noose. The resulting “downsizing” practice is reflected in much the same way as the current debate on modern jury “nullification.”
An act of 1699 withdrew clergy from shoptheft of goods to the value of five shillings or more; an act of 1713 withdrew clergy from thefts of goods to the value of forty shillings or more committed in dwelling houses. Since most thefts would have occurred in shops and homes, and many would have extended to property of such values, these two acts would have inflicted a heavy toll of capital punishment if fully enforced. In practice, these and the other statutes that withdrew clergy from crimes of larceny on condition of circumstance or amount were invoked relatively sparingly. The victim could and often did “undercharge” by declining to charge the circumstances or amount that made the offense nonclergyable. Further, when the victim charged the offense fully, the jury could convict of a lesser and clergy-able offense. The jury could “downc-harge” by convicting of simple larceny while refusing to find that the theft occurred in the shop or dwelling house or that it had been committed by means of breaking and entering; or the jury could “downvalue” by finding the worth of the stolen goods to be below the respective five- and forty-shilling ceilings. The recurrent verdicts of four shillings ten pence and thirty-nine shillings in Old Bailey trials are telltale signs of this process, bringing the offenses within the benefit of clergy in order that the offenders be transported rather than executed.
Id. at 40-41 (footnote omitted).
But how was a jury to know of the particular cut-off for the particular crime? Doubtless some jurors knew already, from prior jury service or general knowledge; John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. Chi. L.Rev. 263, 284 (1978) (hereinafter Langbein, Criminal Trial) (“The juries were laden with veterans, who needed less instructing” than modern American juries); often, however, Judge Ryder made sure to so instruct them:
Ryder sometimes found time to jot down a little of what he was telling the jury. John Taplin was tried before Ryder in October 1754 on an indictment charging theft from a dwelling house of a watch, valued at forty shillings, and of more than twenty guineas in money. The OBSP [Old Bailey Session Papers, see infra ] report of the outcome is a curt as possible, “Guilty 39s.,” meaning that the jury convicted him but determined the combined value of what was stolen to be thirty-nine shillings (less than two guineas, hence well below the value charged in the indictment). Ryder’s notes explain why. “The jury found him guilty to [the] value of 39s., which they did after I told them that 4-Os. was necessary to make him guilty of felony that was without benefit of clergy. It is by Act of 12 Ann.” Ryder *415 thus records his own role in guiding the jury’s prerogative of “valuing” the loot. Because the statute of 1713 to which Ryder refers withdrew so-called benefit of clergy from thefts of forty shillings’ value or more when committed in a dwelling house, it foreclosed the primary ground upon which a convict could escape the death penalty for such an offense. The convention of the day, immortalized in Blackstone’s phrase as the jury’s “pious perjury, ” was that the jury could “doionvalue” the goods, in this instance to thirty-nine shillings, in order to consign the convict to a lesser sanction of transportation for seven years.
Langbein, Ryder Sources, supra, at 22 (footnotes omitted) (emphasis added).
Another example, ... occurs when Ryder explains the verdict in the case of Daniel Malone and Richard Dudley, charged with stealing several pounds’ worth of rigging from a vessel on the Thames.... Ryder reports the verdict, guilty to the value of 39 shillings, and adds:
Note: They found it to that value being under 40s. because it was in reality a crime, if of 40s. value, without benefit of clergy. For the clergy is taken away from felony in stolen goods on board a vessel in a navigable river of 40s. value, but not if under it ■ • • [by] the statute of 24 G.2 [24 Geo. 2, ch. 45 (1751) ] and so would be only simple felony.
Ryder must have instructed the jury about this special statute, which set a 40-shilling ceiling on benefit of clergy for river thefts, and he may have done it in a manner that invited the “downva-luing” that results.
Id. at 23 n. 79 (emphasis added).
The result of routine downsizing of the crime by the jury is dramatically revealed by a Langbein sample of 171 cases: Fifteen showed a jury finding of forty shillings or more while fifty-three were for just under forty shillings resulting in a much lower punishment. Id. at 42. This “downsizing” ran through the system right down to the original complaint. “It also seems plausible that officials advised victims in some cases to undercharge on the ground that the jury would downcharge if the indictment attempted to charge fully.” Id. at 51. Judges themselves engaged in downsizing in misdemeanor cases tried at quarter sessions without a jury.
Downsizing or downvaluing goods was one way in which a jury could return a special or a partial verdict in property cases. Referring to the same sample cases, Langbein writes: “In thirty-nine of our 171 cases, involving forty-four accused, the jury returned what we call (following Beattie) a ‘partial verdict.’ The jury convicted the accused, but only in part; the jury convicted him of a less serious offense than the indictment charged, either by downcharging or by downvaluing the goods.” Id. at 52 (footnote omitted). For example, “Old Bailey juries [would] return petty larceny verdicts in grand larceny cases when they chose to downvalue goods to below one shilling, which is one of the forms of ‘partial verdict.’ ” Id. at 42 (footnote omitted).
The juries were thoughtful and responsible in exercising their own form of clemency through partial verdicts:
Partial verdicts did not occur randomly across the various types of offenses. Rather, juries distinguished, first, according to the seriousness of the offense, and second, according to the conduct and character of the accused in a particular case. Some offenses were seldom or never the subject of partial verdicts, in others partial verdicts were routine, but in most the matter was more circumstantial.
*416 Thus, in our sample, partial verdicts were not returned in any of the cases of livestock theft and highway robbery. Livestock theft was peculiar in that the offense was defined in a way that did not lend itself to a viable form of downc-harging — the accused either stole the horse (or other beast) or not, and the governing statute did not further condition the capital sanction on the value of the animal or on any aggravating circumstance that the jury could manipulate in a partial verdict. Highway robbery could be downcharged — a jury could convict of theft not on the highway — but this did not happen much and not at all in our sample.
By contrast, we find the juries all but invariably downvaluing in pickpocket eases that were charged capitally (at a shilling or above). There were nine such cases in the four Ryder sessions. The juries downvalued below a shilling in eight but convicted capitally in the last.
Most of the major property crimes fell between these extremes of offenses routinely subjected to partial verdicts and offenses never so treated. The quality of the evidence in the individual case became more important than the type of offense. The juries were lenient in dealing with persons indicted of shoptheft and theft from dwelling houses above the capital sums. The only eases not downcharged or downvalued were those in which the evidence indicated the offenders were professionals or gang members. The juries were quite unashamed about returning partial verdicts even in situations involving thefts of money, in which downvaluing became transparent fiction. We noticed in another connection the case of John Tap-lin, indicted for stealing twenty-one guineas in money and a watch. The jurors valued this loot at thirty-nine shillings, and with the active connivance of Dudley Ryder, who recorded that they did it “after I told them that 4.0s. was necessary to make him guilty, of felony that was without benefit of clergy. ” Favorable evidence also motivated the juries fairly frequently to downvalue from grand to petty larceny in order to turn transportation into whipping, especially when the goods were of relatively small amount or when the accused was a married woman or a family man. The jurors took a harsher attitude towards burglary and breaking and entering, being more reluctant to prevent the capital sanction from being imposed.
Id. at 53-54 (footnotes omitted) (emphasis added). Important to a jury’s decision to downsize or acquit was the nature of the defendant, as Ryder likely pointed out to the jury:
Occasionally, the Ryder notes attribute a rationale for the jury’s verdict that we suspect originated in his instruction. Thus, in a case in which a child was acquitted of a theft, Ryder notes after the verdict: “Her father on my examining him said she was 12 years old excepting one month. The only color for finding her Not Guilty was her age, which made it a matter for their judgment whether she had sufficient discretion to be guilty of felony.”
Id. at 23.
What is particularly significant for our purposes is that the jury — often after being informed of the precise effect of their decision on the sentence — was in effect deliberately deciding the sentence.
The jury not only decided guilt, but it chose the sanction through its manipulation of the partial verdict. Since guilt was typically although not inevitably a forgone conclusion in many (perhaps most) cases, sentence is what was at stake when these cases were “contested.”
*417 Id. at 55 (emphasis added). Langbein’s most fascinating conclusion is just this: that the jury’s primary function was, as a practical matter, to determine punishment rather than guilt.
Only a small fraction of eighteenth-century criminal trials were genuinely contested inquiries into guilt or innocence. In most cases the accused had been caught in the act or otherwise possessed no credible defense. To the extent that trial had a function in such cases beyond formalizing the inevitable conclusion of guilt, it was to decide the sanction. These trial were sentencing proceedings. The main object of the defense was to present the jury with a view of the circumstances of the crime and the offender that would motivate it to return a verdict within the privilege of clergy, in order to reduce the sanction from death to transportation, or to lower the offense from grand to petty larceny, which ordinarily reduced the sanction from transportation to whipping.
Id. at 41 (emphasis added).
Much of the Ryder materials are supported by those of Professor Goebel, discussed above, as well as the extensive collections listed in Appendix A, infra. That there were variations among the colonies, some of which gave the juries less power than others, does not reduce the enormous weight of evidence contemporary with the adoption of the Sixth Amendment demonstrating the jury’s critical sentencing role based on its knowledge of the punitive effects of possible verdicts. See, e.g., Laura I. Appleman, The Lost Meaning of the Jury Trial Right, Jan. 17, 2008, http:// ssrn.com/abstract=1084960 (analysis of various state practices to demonstrate why juries determined all critical aspects of punishment; the paper, while published electronically, is not quoted because it is in non-final form). See also generally Douglas Greenberg, Crime, Law Enforcement, and Social Control in Colonial America, 26 Am. J. Legal Hist. 293 (1982) (placing varying colonial law enforcement practices in historical context).
3. Old Bailey Session Papers
Another study by Professor Langbein based upon the more superficial Old Bailey Session Papers (“OBSP”), a group of “reports” from the mid 1670s to the mid-1730s, supports much of the scholarly conclusions about jury sentencing power. John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. Chi. L.Rev. 263 (1978). The OBSP confirm the criminal practices — and the primary nature of the jury as a sentencing body — described by Goebel and Ryder. Repeatedly, the court informed defendants they should not plead guilty because on such a plea hanging was mandatory, while a quick trial would permit the jury to mercifully downgrade the offense. Id. at 279-80.
Significantly for our inquiry, juries were more likely to know beforehand — or be informed by the judge — of the effect of their verdicts on punishment. The same English jury would try multiple cases so that the “substantive criminal law held few mysteries for these experienced jurors.” Id. at 277. “When instructing a jury, the judge possessed what seems to have been a wholly unrestricted power to comment on the merits of the case.... [T]he judge had no hesitation about telling the jury how it ought to decide.” Id. at 285. Despite more extensive instructions and commentary from the bench, court control over jury knowledge and conclusions was much less stringent than it is today. Id. at 272 ff. Both judges and jurors could recommend royal mercy through pardon upon a guilty verdict. Id. at 297.
Summing up on the issue before us, Professor Langbein states:
[T]he jury of that time had a large role in what we think of as sentencing, that is, in determining the sanction. In a *418 significant fraction of the cases that went to trial, the real issue was whether the jury would choose to exercise its power to “value” stolen goods in ways that would affect the applicable sanction. It was understood that the value that the jury assigned was fictional, and that the jury was in truth deciding whether to rescue the culprit from the ordinary sanctions of transportation and death by so characterizing the crime that only a lesser sanction could be invoked. If the goods were valued below 12 pence (in practice the Old Bailey juries used the figure of 10 pence), the crime became petty larceny, hence a misdemeanor, and the convict escaped with a whipping or a short jail term. Under certain circumstances the jury could, by valuing goods below other monetary ceilings, bring the culprit under the rubric of benefit-of-clergy, for which the sanction was branding in the thumb. The decision between finding an accused guilty of murder or manslaughter, which also belonged to the jury, can be seen as the choice between capital punishment and branding. It could be argued that in all these situations the jury ivas in reality discharging a sentencing function, and even today we expect sentencing officers to consult past conviction evidence. But we have seen that the OBSP show that the juries were using past conviction evidence to determine guilt, and with no constraint from the bench. Furthermore, modern juries have the power to affect the sanction by not convicting on all counts or by finding only a lesser included offense, yet we do not, on that account, deem them sentencing officers entitled to learn of the accused’s criminal record.
Another possibility is that it was not thought feasible to apply a rule of exclusion to past conviction evidence, since already-branded defendants necessarily earned their thumbs into court. But many of the former offenses that are laid to Old Bailey defendants would not have left them branded, branding itself was sometimes proved by record, and in any event the judges could have devised, had they cared to, a routine that would have kept defendants’ hands out of jurors’ sight.
Id. at 303-04 (footnotes omitted) (emphasis supplied).
In a more recent book, The Origins of Adversary Criminal Trial (2003), John H. Langbein recapitulates much of what were the jury’s powers on sentencing.
Trial as a Sentencing Proceeding
The sentencing practices of the later seventeenth and eighteenth centuries were a powerful source of pressure on the defendant to speak at his trial. Our modern expectation is that sentencing will occur in a separate post-verdict phase, after the trial has determined guilt. Furthermore, in jury-tried cases, we expect the judge, not the jury, to exercise whatever sentencing discretion the law might bestow. In early modern times, however, these divisions of function in sentencing matters between trial and post-trial, and between jury and judge, were less distinct. The trial jury exercised an important role in what was functionally the choice of sanction through its power to manipulate the verdict by convicting on a charge that carried a lesser penalty. (A vestige of this power to mitigate the sentence survives in modern practice, when the jury convicts of a lesser included offense, or when it convicts on fewer than all the counts that are charged and proved).
The practice of juries convicting only of a lesser charge, or “downvaluing” stolen goods in order to make the offense less serious, and especially in order to mitigate against the death penalty, was immortalized in Blackstone’s as “pious *419 perjury” to describe these verdicts that convicted the defendant but reduced the sanction.
In the Elizabethan-Jacobean period partial verdicts were relatively uncommon. It was the development of alternatives to the death penalty in the eighteenth century, especially the system of transportation to the New World for a term of penal servitude, that allowed partial verdict to burgeon. Transportation became the sanction for offenses that fell within the rubric of benefit of clergy, giving the jury an effective choice between convicting an offender in a manner that would lead to the imposition of capital punishment or in a way that would result in transportation. For example, if the jury convicted a defendant of burglary, the punishment was death; but if, on the same facts, the jury convicted of the partial verdicts involved transportation: When the jury valued stolen goods at less than a shilling (invariably at 10d.), the offence became petty rather than grand larceny, for which the common sanction was whipping. In a sample of London cases from the Old Bailey in the 1750s I found that the juries returned partial verdicts in nearly a quarter of the cases. For a few offenses, like picking pockets, the juries all but invariably downvalued, expressing a social consensus that the capital sanction was virtually never appropriate. At the opposite end of the spectrum were a few property crimes, especially highway robbery and gang-style burglary, that were regarded as so menacing that juries virtually never mitigated the capital sanction. Across the broad range of property crimes, however, jury discretion held sway. In deciding whether to return verdicts of mitigation, juries distinguished, first, according to the seriousness of the offenses, and second, according to the conduct and character of the accused.
The jury’s power to mitigate sanctions profoundly affected the purpose of the criminal trial for those many offenses in which the jury might return a partial verdict. Only a small fraction of eighteenth-century criminal trials were genuinely contested inquiries into guilt or innocence. In many cases, perhaps most, the accused had been caught in the act or with the stolen goods or otherwise had no credible defense. To the extent that trial had a function in such cases beyond formalizing the inevitable conclusion of guilt, it was to decide the sanction. Because the main purpose of defending such a case was to present the jury with a sympathetic view of the offender and of the circumstances of the crime that would encourage a verdict of mitigation, the criminal defendant labored under an enormous practical compulsion to speak in his own defense. By structuring sentencing as an incident of the trial, the procedure foreclosed the defendant from participating in what was in function his sentencing hearing unless he spoke about the circumstances of the offense. To be sure, character witnesses could and did carry some of this burden for the defendant in some cases; it was not impossible to remain silent and still obtain jury leniency. But it was a grave risk that few defendants had the stomach to undertake. Thus, the same factors that caused the procedure to prefer trials over guilty pleas also induced criminal defendants at trial to speak to their knowledge of the events.
The partial verdict system abated slowly, toward the end of the eighteenth century and during the early decades of the nineteenth century, as the sanction of imprisonment replaced transportation. The modern system of post-verdict judicial sentencing arose in response to many factors. The movement *420 to revise the substantive criminal law by consolidating and rationalizing the categories of offenses invited the grading of sentences according to severity. This development was deeply connected to the appearance of imprisonment as the routine punishment for cases of serious crime. The older sanctions, death and transportation, had lent themselves to jury manipulation, because they came as “either-or” choices. Because the new sanction of imprisonment for a term of years was all but infinitely divisible, it invited the concept of the sentencing range, which transferred to the judge the power to tailor the sentence to the particular offender.
Id. at 57-60 (footnotes omitted) (emphasis added).
With the advent of mandatory minimum sentences, however, federal juries today again face — albeit often unknowingly- — “either-or” choices similar to those facing the British and colonial juries of 1791. To fully exercise their historical function, juries today must understand the two ei-thers; they cannot rely on the court to mitigate because it is bound by the statutory minimum term of imprisonment.
B. Nineteenth- and Twentiethr-Centu-ry Judicial Attempts to Restrict Sixth Amendment Jury Discretion
That the eighteenth-century practice of the jury’s right to decide the law— or to decide how the law applies to particular defendants in light of the severity of punishment — -was incorporated into the Sixth Amendment’s right to “trial by jury” is illustrated by the 1794 Supreme Court case,
Georgia v. Brailsford,
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.
Two major Supreme Court Justices’ opinions in the nineteenth century have language relied upon by subsequent courts as restricting the Sixth Amendment’s jury discretion and right to know the effect of its decision. They are Justice Story’s in the Circuit Court of the District of Massachusetts,
United States v. Battiste,
Battiste is distinguishable from modern anti-nullification cases because Justice Story’s statement was made in the context of preventing a conviction unfounded under the statute as he construed it, not to prevent the jury from refusing to convict a *421 person technically guilty. Justice Harlan’s, sixty years later, contains a long and learned analysis. It restricts the effect of the historical Sixth Amendment by preventing the jury from finding the lesser of the crimes of murder or manslaughter— the difference between death or life for the prisoner.
Modern historical research demonstrates that the equally long and learned dissent of Justice Gray in Sparf had the history of the Sixth Amendment right. He wrote:
Until nearly forty years after the adoption of the Constitution of the United States, not a single decision of the highest court of any State, or of any judge of a court of the United States, has been found, denying the right of the jury upon the general issue in a criminal case to decide, according to their own judgment and consciences, the law involved in that issue — except the two or three cases ... concerning the constitutionality of a statute....
It must frankly be admitted that in more recent times, beginning with ... Mr. Justice Story’s charge to a jury in 1885 in United States v. Battiste,2 Sumn. 240 ,24 F. Cas. 1042 , the general tendency of decision in this country (as appears by the cases cited in the opinion of the majority of the court) has been against the right of the jury.
It would be an example of inordinate tediousness and supererogation to rehearse again the superb historical analyses of Justices Harlan and Gray that include detailed statements of the views of such luminaries as Thomas Jefferson, James Madison, Alexander Hamilton, John Marshall, John Jay, Samuel Chase, Joseph Story, Lemuel Shaw, Lord Coke, Lord Bacon, John Milton, and John Adams; details of cases such as Anthes, Bushel, Zenger, Penn & Meads, Burr, and others; as well as the Magna Carta and statutes adopted on both sides of the Atlantic. Cf., e.g., The Three Trials of William Hone (Tegg ed. 1876) (three different juries refused to convict in three different trials despite judicial instructions); Bushell’s Case, in 6 Howell’s State Trials 999 (1670); Penn & Mead’s Case, in id. at 951 (1670) (jury refusing to convict William Penn of unlawful assembly despite threats from judge); James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger (1963).
Justice Harlan’s majority opinion was well designed to produce a more efficient court system calculated to deal with the growing complexity of the law; the much improved training and professionalism of bench and bar; a lay public increasingly out-of-touch with the law’s details; and a desire to provide predictable rules protecting our growing national industry and commerce. In addition, courts following Sparf appear to reflect a pervasive fear that our heterogeneous jurors, unbound by common principles of morality, education and dedication to the law, may deviate too far from judicial views of the rule of law unless juries are tightly controlled. This lack of faith in the good sense of juries is not generally shared by trial judges who deal with them on a daily basis.
Whatever the judicial system’s evaluation of modern juries and their proper role, the Supreme Court has recently instructed us that in matters of sentencing as well as hearsay, it is necessary to go back to the practice as it existed in 1791 to construe the meaning of constitutional provisions such as the Sixth Amendment. Justice Gray dissenting in
Sparf
seems to have hit both the modern and ancient marks exactly. Judges are forcefully reminded in
Crawford v. Washington,
reevaluating the constitutional right of confrontation and the limits on the use of “testimonial” hearsay, that no matter how
*422
long and firm a precedential line of Supreme Court cases, if analysis shows it was ill-based historically it must be abandoned.
It is worthwhile recalling that the author of the majority opinion in
Sparf
was the first Justice Harlan. His minority opinion in
Plessy v. Ferguson,
As for Justice Story’s early eighteenth-century
opinion
— Battiste, the first significant federal case seeming to limit Sixth Amendment discretion — it lends little support to
Sparf. Battiste,
In the course of his dispositive analytical opinion on the statute’s meaning, Justice Story declared that in criminal and civil cases,
[The jury’s] verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or- criminal, [jurors] have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views, which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain, what the law, as settled by the jury, actually was. On the contrary, if the court should err, in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular court may required. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or *423 ignorance, or accidental mistake, to interpret it. If I thought, that the jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial. But believing, as I do, that every citizen has a right to be tried by the law, and according to the law; that it is his privilege and truest shield against oppression and wrong; I feel it my duty to state my views fully and openly on the present occasion. It is not, indeed, an occasion, on which there is any reason to doubt, that an intelligent jury can understand the principles of law applicable to the subject, as well as the court; for they are the principles of common sense. And as little reason is there, in my view, to suppose, that they can operate injuriously to the real merits of the case of the prisoner.
Id. at 1043 (emphasis added).
Since Battiste was being protected by the court against an incorrect interpretation of the statute by the jury that could have harmed a guiltless defendant, Story had the obligation to prevent exercise of jury discretion against the law. This is the law today — as it must be — under the Federal Rules of Criminal Procedure which grant courts broad discretion to prevent a criminal conviction unfounded under the law. No one challenges the power of the judge to prevent an unlawful conviction, and the lack of right of the jury to convict against the law.
Battiste does not address what was the practice and conceded power of the jury to refuse to convict even when the judge instructed that the law required conviction. That view was inherent in the Sixth Amendment even though judges in the late-nineteenth, twentieth and twenty-first centuries were increasingly trying to control juries by limiting their power and prerogative not to convict or to convict of a lesser crime to reduce the sentence. Placing the pejorative characterization of “nullification” on the jury’s Sixth Amendment power does not define it out of existence.
Evisceration of felony death penalties— as well as of the Fugitive Slave Acts in the North — continued well into the nineteenth century, leading ultimately to considerable reduction in the number of capital offenses since the draconian penalties could not be enforced.
See
John Clark,
The Social Psychology of Jury Nullification,
24 Law
&
Psychol. Rev. 39, 43-44 (2000). Increased pressure on the judiciary to assert control denied it by the Sixth Amendment was created by growing diversification of the jury pool and reluctance of juries to convict, for example, in labor unrest cases, liquor prohibition cases, cases of White violence against Blacks, Vietnam War resister cases, and consensual statutory rape cases involving members of the armed forces in World War II.
See, e.g., United States v. Dougherty,
The notoriety of the Dougherty case at the time of Vietnam War unrest was probably sufficient to make a nullification charge unnecessary to apprise the jury of its power. See Parmenter, supra, 389-90. By contrast, the current lack of awareness of the many statutory based minimum sentence requirements renders juries vapid by lack of awareness of the effects of their verdicts. See id. at 402-416 nn. 231-370 (illustrating the increasing frustration of courts at jury refusals to convict, leading to increasing pressure by courts on juries not to nullify, including threats of contempt, removal of a nullifying juror, and *424 instructing the jury that they could not nullify); see also Appendix B, infra.
Consistent modern judicial attempts to water down the Sixth Amendment, see Part IV.C, infra, have not escaped notice by academics and other scholars whose commentary has been generally critical of limitations on Sixth Amendment jury power to dispense mercy. See, e.g., Appendix A, infra; Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1191-99 (1991) (noting that juries had power to declare laws unconstitutional and calling that argument “strong,” but cautioning that “I do not mean to suggest that I am wholly persuaded”); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 Am.Crim. L.Rev. 89, 105 (1995) (“The time has come for the Supreme Court to reconsider its decision in Sparf, as well as the question of whether the jury should be instructed of its nullification power.”); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 679 (1995) (arguing that African-American jurors should nullify in some cases to combat racism in criminal justice system); David N. Dorfman & Chris K. Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. Mich. J.L. Reform 861, 900-01 (1995) (arguing that jury nullification is a “popular check on executive and judicial discretion”); Arie M. Rubenstein, Note, Verdicts of Conscience: Nullification and the Modem Jury Trial, 106 Colum. L.Rev. 959 (2006) (basing argument in favor of jury nullification on recent Supreme Court jury right cases); Alan W. Scheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L.Rev. 168, 224 (1972) (“Preservation of ... the right to nullify ... [is] essential to a restoration of the vaunted stature the judicial system should occupy.”); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 Wash & Lee L.Rev. 165, 166 (1991) (“[0]ur judicial system would be better served if judges instructed jurors of their time powers.”); Ran Zev Schijanovich, The Second Circuit’s Attack on Jury Nullification in United States v. Thomas: In Disregard of the Law and the Evidence, 20 Cardozo L.Rev. 1275, 1278 (1999) (“Thomas is unsound both as a matter of law and as a matter of policy.”); Chaya Weinberg-Brodt, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L.Rev. 825 (1990) (arguing for refocusing arguments regarding nullification on defendants’ rights and reconsidering doctrines that impede nullification). But see Pamela Baschab, Jury Nullification: The Anti-Atticus, 65 Ala. Law. 110, 114 (2004) (“Jury nullification, no matter how you slice it, is at bottom a desecration of the basic premise that we are all equal under the law.”); Leo P. Dreyer, Jury Nullification and the Pro se Defense: The Impact of Dougherty v. United States, 21 U. Kan. L.Rev. 47, 60-63 (1972-73) (arguing against allowing instructions to juries regarding their power to nullify); Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L.Rev. 253 (1996) (arguing that jury nullification has a larger cost than is normally realized and that the Sixth Amendment does not protect the right of jury nullification); Richard St. John, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997) (criticizing legislative proposals to authorize jury nullification).
C. Some Modem Attempts to Eliminate Jury Power Violate the Constitution
Since the late nineteenth century, jury power has increasingly been suppressed in favor of judicial control in both civil and criminal trials through case law and amendments to the statutes and rules gov *425 erning the trial process. This trend- — especially since the 1990s — is so strong that one commentator considers it “war.” See Andrew J. Parmenter, Nullifying the Jury, The Judicial Oligarchy Declares War on Jury Nullification, 46 Washburn L.J. 379 (2007). That the courts of three out of the four states that grant juries the power in criminal cases to decide both law and fact “have eviscerated any literal translation of these constitutional provisions” is one such example. Id. at 391; see Ga. Const, art. I, § 1, para. xl(a) (1998); Ind. Const, art. I, § 19 (1999) (“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”); Md.Code Ann., Const, art. 23, Declaration of Rights (same).
Reasons for this trend are beyond the scope of this opinion, but hypotheses include “changes in the American psyche, transitioning a young republic with revolutionary zeal and distrust for governmental authority into a mature democracy” more concerned with law and order; professionalization of the legal profession and prioritizing law over facts; fears of an increasingly diverse jury pool due to the twentieth-century opening up of jury service, particularly with an influx of immigrants to the country; and the need to have a uniform predictable national law and its enforcement that would favor the growth of national commerce.
See id.
at 386-87;
see also Husain v. Springer,
Relying on Sparf v. United States, judges have generally refused to inform juries of their full powers, including their power to nullify. Nullification instructions, historically common, are no longer given. It is generally accepted that defendants have no right to such a charge. Yet Sparf— supposedly the bedrock case against jury nullification — adopted no such holding:
Harlan’s opinion did not preclude judges from rendering nullification instructions or allowing nullification arguments in proper circumstances, it did not require judges to mislead jurors about their power to judge the law, and it did not sanction a judicial denial of the jury’s nullification power, either by instruction or interference. Sparf only held that it was not reversible error to instruct the jury that it would be wrong to disregard the court’s instruction as to the law. In fact, the trial judge in Sparf informed the jury that it had the “physical power” to render a verdict contrary to his instructions.
Parmenter, supra, at 388 (footnotes omitted).
Not only are juries not informed of their constitutional and historic power to nullify, judges increasingly issue directive and authoritative jury instructions, which increase judicial control over jurors. See B. Michael Dann, “Must Find the Defendant Guilty” Jury Instructions Violate the Sixth Amendment, 91 Judicature 12 (2007) (stating that a “survey of the states’ and federal circuits’ corresponding jury instruction language reveals that 24, almost 40 percent, of state courts and federal circuits use the command ‘must’ or its equivalent (‘shall’ or ‘duty’) to point juries *426 to verdicts of guilty when all of the elements of the alleged crime have been proven. Another 7, or 13 percent, use the milder admonition ‘should’ to steer the jury’s decision to guilt.”). Some judges have gone as far as to tell jurors they have a legal obligation to apply the law, that they could face sanctions upon nullification, and that they “had a duty to notify the court if any juror expressed intent ‘to disregard the law.’ ” See Parmenter, supra, at 404, 409.
Judicial control over potential and actual members of the jury has steadily increased. Voir dire, in practice since the Fugitive Slave Acts, is used to weed out potentially nullifying jurors.
See
Parmenter,
supra,
at 398 (citing Lysander Spooner, Trial by Jury (1852)). The Court of Appeals for the Eleventh Circuit has upheld a trial court’s sua sponte dismissal of a juror because the juror knew the jury had the power to nullify.
United States v. James,
Dismissals for cause based on jurors’ beliefs still result, especially in death penalty cases, in pro-conviction jury panels not fairly selected as a cross-section of the community.
See, e.g., Uttecht v. Brown,
— U.S. -,
Since the 1990s, there has been a growing trend towards discharging jurors who may nullify.
See
Parmenter,
supra,
at 402-10 (citing cases). The court in
United States v. Thomas,
D. Recent Supreme Court Caselaw Rejects Attempts to Limit Jury’s Power
Those who would limit the powers historically exercised by juries must now consider the Supreme Court’s
Booker-Apprendi
line of sentencing decisions,
see United States v. Booker,
1. Supreme Court Places a High Value on the Jury’s Historic Sentencing Role
The Supreme Court’s recent line of sentencing decisions have not left much doubt of the Court’s belief that the right to a jury as embodied in the Sixth Amendment is one of the Constitution’s most cherished liberties. These cases have addressed varying permutations of the same question: When must facts that enhance the possible punishment of a defendant be proved beyond a reasonable doubt to a jury?
The Court first addressed this issue in
Jones v. United States,
The rationale supporting these decisions was that the courts could not be allowed to make factual findings that would enhance a sentence that must be imposed if that practice would infringe upon the Sixth Amendment right to a jury trial.
See, e.g., Blakely,
Identifying trial by jury as “the grand bulwark” of English liberties, Blackstone contended that other liberties would remain secure only “so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay *428 for their liberty in more substantial matters.”
Jones,
on the Laws of England 342-44 (1769));
see also Apprendi,
Justice Scalia’s majority opinion in
Blakely
contains language to the same effect: “[The jury] right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”
Blakely,
Perhaps the most evocative of the recent Supreme Court writings concerning the jury is an opinion by Justice Scalia in a non-sentencing case,
Neder v. United States,
Perhaps the Court is so enamoured of judges in general, and federal judges in particular, that it forgets that they (we) are officers of the Government, and hence proper objects of that healthy suspicion of the power of government which possessed the Framers and is embodied in the Constitution. Who knows? — 20 years of appointments of federal judges by oppressive administrations might produce judges willing to enforce oppressive criminal laws, and to interpret criminal laws oppressively- — at least in the view of the citizens in some vicinages where criminal prosecutions must be brought. And so the people reserved the function of determining criminal guilt to themselves, sitting as jurors. It is not within the power of us Justices to cancel that reservation.
Id.
at 32,
2. Supreme Court Invalidation of Laws and Practice Incompatible with Historic Jury Role
Recent sentencing opinions show that the Supreme Court is willing to strike down precedents and statutes that impinge on the historical functions of the jury. The opinions do so in the teeth of arguments that pro-jury doctrines could have adverse consequences, such as reducing the efficiency of adjudicatory process, creating unfair sentencing disparities, and throwing the federal criminal courts into disarray. A similar tale is told by Craw *429 ford and the current interpretation of the Confrontation Clause of the Constitution.
The Supreme Court’s decisions in its recent sentencing cases were based on the need to prevent the erosion of the historical function of the jury. The cases forced the Court to “face ... the issue of preserving an ancient guarantee under a new set of circumstances .... in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime.”
Booker,
The resulting
Booker-Apprendi
line of cases was founded largely on the Court’s interpretation of the jury’s role in sentencing in early American and English cases.
See, e.g., Apprendi,
These cases demonstrate that the Supreme Court holds the jury right in such high esteem that it was willing to invalidate widespread accepted sentencing practice, even though critics portended that dire consequences would result. In response to Justice Breyer’s dissenting argument in Apprendi that the majority’s solution would be unworkable, Justice Scalia noted that it was constitutionally required:
I feel the need to say a few words in response to Justice Breyer’s dissent. It sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State' — and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.
In Justice Breyer’s bureaucratic realm of perfect equity, by contrast, the facts that determine the length of sentence to which the defendant is exposed will be determined to exist (on a more-likely-than-not basis) by a single employee of the State. It is certainly arguable (Justice Breyer argues it) that this sacrifice of prior protections is worth it. But it is not arguable that, just because one thinks it is a better system, it must be, or is even more likely to be, the system envisioned by a Constitution that guarantees trial by jury. What ultimately demolishes the case for the dissenters is that they are unable to say what the right to trial by jury does guarantee if, as they assert, it does not guarantee — -what it has been assumed to guarantee throughout our history' — the *430 right to have a jury determine those facts that determine the maximum sentence the law allows. They provide no coherent alternative.
Apprendi,
Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.
Blakely,
Lest he be misunderstood, Justice Scalia repeated the argument in Booker.
We recognize, as we did in Jones, Ap-prendi, and Blakely, that in some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial — a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment — has always outweighed the interest in concluding trials swiftly.
Booker,
Concern about changes in practice and precedent is not a ground for ignoring the Constitution. Some have lamented the Court’s sentencing revolution as threatening to throw the federal system of criminal justice into disarray.
See, e.g., United States v. Penaranda,
Crawford’s reinvigoration of the Confrontation Clause reflects a similar jurisprudential shift. The Court had previously held, in
Ohio v. Roberts,
Implications of the Booker and Crawford interludes in our constitutional history are apparent in the instant case. As in the sentencing cases, modern practice has eroded a power historically reserved to the jury, to wit, the power to refuse to convict or to modify its decisions based upon its knowledge of sentencing implications. Supposed efficiency — which is an objection largely based on phantoms of chaos — cannot trump the Constitution.
3. Sentencing Cases Suggest that the Supreme Couyi Recognizes the Jury’s Power to Moderate the Laiu’s Harsh Effects
The argument for informing the jury of sentencing implications proceeds by some degree of analogy, but there is language in some of the sentencing cases that directly addresses the issue of jury nullification. In
Jones,
the Court was faced with the question of whether a federal statute should be interpreted to create three distinct offenses or a single crime that carried three different maximum penalties, with two of the máximums only applicable if a judge (not a jury) made certain factual findings.
Jones,
The question might well be less serious than the constitutional doubt rule requires if the history bearing on the Framers’ understanding of the Sixth Amendment principle demonstrated an accepted tolerance for exclusively judicial factfinding to peg penalty limits. But such is not the history. To be sure, the scholarship of which we are aware does not show that a question exactly like this one was ever raised and resolved in the period before the Framing. On the other hand, several studies demonstrate that on a general level the tension between jury powers and powers exclusively judicial would likely have been very much to the fore in the Framers’ conception of the jury right.
Id.
at 244,
Even in this system, however, competition developed between judge and jury over the real significance of their respective roles. The potential or inevitable severity of sentences was indirectly checked by juries’ assertions of a mitigating power when the circumstances of a prosecution pointed to political abuse of the criminal process or endowed a criminal conviction with particularly sanguinary consequences. This power to thwart Parliament and Crown took the form not only of flat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included *432 offenses, manifestations of what Blackstone described as “pious perjury” on the jurors’ part.
Id.
at 245,
The Court then discussed various attempts to limit the power of the jury, but it soon returned to the concept of nullification. It continued:
A second response to the juries’ power to control outcomes occurred in attempts to confine jury determinations in libel cases to findings of fact, leaving it to the judges to apply the law and, thus, to limit the opportunities for juror nullification. Ultimately, of course, the attempt failed, the juries’ victory being embodied in Fox’s Libel Act in Britain, see generally T. Green, Verdict According to Conscience 318-55 (1985), and exemplified in John Peter Zenger’s acquittal in the Colonies, see, e.g., J. Ra-kove, Original Meanings 300-02 (1996). It is significant here not merely that the denouement of the restrictive efforts left the juries in control, but that the focus of those efforts was principally the juries’ control over the ultimate verdict, applying law to fact (or “finding” the law, see, e.g., id. at 301), and not the factfinding role itself. There was apparently some accepted understanding at the time that the finding of facts was simply too sacred a jury prerogative to be trifled with in prosecution for such a significant and traditional offense in the common law courts. That this history had to be in the minds of the Framers is beyond cavil. According to one authority, the leading account of Zenger’s trial was, with one possible exception “the most widely known source of libertarian thought in England and America during the eighteenth century.” L. Levy, Freedom of Speech and Press in Early American History 133 (1963). It is just as much beyond question that Americans of the period perfectly well understood the lesson that the jury right could be lost not only by gross denial, but by erosion.
Id.
at 246-48,
To be sure, these passages do not flatly state that the Sixth Amendment encompasses any sort of right to jury nullification. But it is telling that when the Court recognized a need to expound upon the historical ability of juries to check the judiciary, its first resort was to cite the jury’s power to refuse to convict (or to convict of a crime that carried a lesser sentence). Also telling is the fact that the Court discussed the
Zenger
trial, thought by many to be one of the prime examples in support of the historical argument in favor of nullification.
Jones,
E. Requirement of Jury Knowledge in Vietv of the Unusual Situation, Statute and Punishment of Which the Jury Was Not Aware
A completely distinct division between the roles of judge and jury as is said to be embodied in
Sparf
is unsupported historically,
see
Parts IV.A-C,
supra,
and now,
post-Booker,
it is unsupportable legally.
See
Part IV.D,
supra.
Providing jurors sentencing information would enable the jury to more effectively fulfill its historical Sixth Amendment role as the conscience of the community and guardian against government oppression. An analysis of
Sparf
s Second Circuit recent progeny,
Thomas
and
Pabon-Cmz,
is illustrative of the approach now required, especially in comparison with the Court of Appeal’s expansive — and more historically apt — language regarding the nature of the jury’s role in
Gilliam. Compare United States v. Pabon-Cruz,
1. Thomas and Pabon-Cmz Are Premised upon a Now Inappropriate Attempt to Curtail Jury Powers
It is no criticism to point out that the statements of the Court of Appeals in Thomas and Pabon-Cmz suggesting strict limitations on information which may be made available to a jury must now be read in the light of Supreme Court cases reinterpreting the Sixth Amendment.
a. Thomas
Thomas
is an example of the former judicial attempts to control the jury’s mercy-dispensing powers, one of many discussed in Part IV.C,
supra.
The
Thomas
court did not simply discourage — as many other courts have done—jury nullification; it seemed to go further in suggesting that a trial court may dismiss a potentially nullifying juror during jury deliberations.
See
Ran Zev Sehijanovich,
The Second Circuit’s Attack on Jury Nullification in United States v. Thomas: In Disregard of the Law and the Evidence,
20 Cardozo L.Rev. 1275, 1277 (1999) (“The Second Circuit’s holding represents perhaps the most far-reaching action taken by the federal courts to suppress the jury’s prerogative to refuse to follow the law ‘based on its own sense of justice or fairness’ in reaching a verdict.”). The
Thomas
court’s assertion that its ruling was “one fully consistent with our history and traditions,”
Thomas,
In
Thomas,
the defendants were convicted by an eleven-person jury after the trial court dismissed the twelfth juror during jury deliberations pursuant to Rule 23(b)(3)’s “just cause” provision, after finding that the juror “was purposefully disregarding the court’s instructions on the law — in effect, that the juror intended to acquit the defendants regardless of the evidence of their guilt.”
Thomas,
The Court of Appeals for the Second Circuit's dictum in Thomas that trial courts have a duty to dismiss potentially nullifying jurors was based on its
[C]ategorical[ ] rejection of] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.
Id.
at 614 (citation and footnote omitted). Before it categorically rejected the possibility of jury nullification, the
Thomas
court briefly reviewed — but ultimately found unpersuasive — nullification’s history as a form of “tolerable civil disobedience” as exemplified in
Zenger, id.
at 614, and the “long and complicated history of juries acting as judges of the law as well as the evidence” in the “Anglo-American legal system,”
id.
at 614-15; the various procedural rules that serve to protect jury verdicts from outside inquiry (e.g., secrecy of deliberations, general verdicts, inconsistent verdicts),
id.
at 615; the jury’s part in “‘introducing] a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,’ ”
id.
(quoting
U.S. ex rel. McCann v. Adams,
Most respectfully, it is submitted that
Thomas
no longer expresses the law in view of current Supreme Court rulings. That Rule 23(b)’s “just cause” provision may be used to dismiss a potentially nullifying juror is dubious in view of what appears to be the design of the 1983 amendment to Rule 23 of the Federal Rules of Criminal Procedure to dismiss only those jurors who are unable to continue to serve due to sudden physical illness or mental stress.
See
Advisory Committee Notes, Fed.Crim.Code and Rules 119 (Thomas/West 2007) (“[O]ne of the jurors is seriously incapacitated or otherwise found to be unable to continue service upon the jury”); Schijanovich,
supra,
at 1309-13. Application of the
Thomas
test — to permit judicial inquiry to determine whether jurors are simply unconvinced by the evidence or intent on nullification — inevitably destroys the essential secrecy of jury deliberations, as the court itself acknowledged.
See Thomas,
In any event, because it is based primarily on
Sparf
— now largely abrogated by
Booker, see
Parts IV.A-E,
supra
— the
Thomas
ruling exceeds the power of judges under the Sixth Amendment to control juries. That it is a criminal jury’s duty “to take the law from the court and apply that law to the facts as they find them,”
id.
at 615 (quoting
Sparf,
Despite
Thomas’s
current lack of foundation, other appellate courts (both before and after Booker) have followed its conclusion. The Court of Appeals for the Eleventh Circuit has approved the dismissal of a potentially nullifying juror under Rule 23(b)’s just cause provision, applying a “beyond reasonable doubt” standard to ensure that a juror may only be excused “when no ‘substantial possibility’ exists that she is basing her decision on the sufficiency of the evidence.”
United States v. Abbell,
While
Thomas
purports to protect jurors and defendants by providing that “if the record evidence discloses any possibility that the request to discharge stems from the juror’s view of the sufficiency of the government’s evidence, the court must deny the request,”
Thomas,
b. Pabon-Cruz
i. Procedural History
Following its
Thomas
decision, the Court of Appeals for the Second Circuit failed to recognize the jury’s historic Sixth Amendment mercy-dispensing powers in
Pabon-Cruz,
Before trial, both parties made in limine motions. Offering to stipulate that the files found on the defendant’s computer were child pornography, the defense moved to preclude showing the jury any of the pornographic images. The government moved to preclude the jury from learning of the ten-year mandatory sentence. Viewing the motions as related, the district court denied both:
I must say, I find both sides a little bit inconsistent in that respect. The defense seems to want the jury to make some kind of a judgment about whether the penalty is appropriate for the conduct without letting the jury see what the conduct consists of. On the other hand, the government, which had the opportunity to have a fact finder who would be bound to apply the law and the evidence, chose a fact finder, I assume, because it wanted a judgment of the community, and yet it doesn’t want the community to know what it is actually judging about or what the consequences of its judgment are.
Id. at 90. Indicating that it would inform the jury of the sentence to be imposed on defendant if convicted of the advertising offense but would not allow the defense to argue nullification, id., the trial court explained its reasoning:
But I think there is a difference between saying that the court does not and cannot approve of nullification, and ignoring the fact that juries have historically played this role. I think they are only appropriately able to play that role when they do it against a backdrop of stern admonitions that they are not supposed to do it. I think it is an act of civil disobedience if they do it. And they should not be given any encouragement or any condonation or any instruction that suggests to them that it is legally permissible for them to violate their oath as jurors. On the other hand, historically jurors have sometimes done that, and the judgment of history is sometimes that when they do that, they are in effect lawless and evil, and at other times the judgment of history is that they’ve done the right thing.
I would not expect the average juror to be very tempted to civil disobedience in light of the seriousness of the conduct shown here and the strength of the evidence against the defendant.
But in the unlikely event that members of the jury were so troubled that they decided to acquit in the face of the court’s instruction, in violation of their oaths, and on the face of the evidence in the case, that, it seems to me, would constitute a significant exercise of the historic function of the jury and one that the jurors could never imagine if they had no notion of the seriousness of this offense in terms of punishment.
Id. at 90-91
The government promptly filed an application in the Court of Appeals for the Second Circuit for an emergency stay and writ of mandamus. Id. The court granted the writ in an unpublished summary order, which stated in its entirety:
IT IS HEREBY ORDERED that the petition for a writ of mandamus is granted. Challenges to a proposed jury charge may properly be considered on a petition for a writ of mandamus. The District Judge’s proposed jury instruction regarding the penalties the defendant faces if convicted is a clear abuse of discretion in light of binding authority. See Shannon v. United States,512 U.S. 573 ,114 S.Ct. 2419 ,129 L.Ed.2d 459 *437 (1994); United States v. Thomas,116 F.3d 606 (2d Cir.1997). IT IS FURTHER ORDERED that the stay of trial proceedings is hereby lifted.
Id. at 91-92.
Pabon-Cruz appealed after a jury verdict of guilty. In the published decision on the direct appeal,
United States v. Pabon-Cruz,
[T]he pertinent question on appeal is not whether that [mandamus] ruling was correct, but whether defendant was denied the benefit of a charge he requested to which he was legally entitled. Accordingly, even if we believed the earlier panel was incorrect in forbidding the District Court from instructing the jury on the sentencing consequences, the conviction remains sound unless the instructions actually given by the District Court were in error or the defendant had a legal entitlement to the instruction he was denied.
Id.
at 94 (emphasis added). Finding no reversible error in the charge, the Court of Appeals for the Second Circuit supported its reasoning by an explanation relying on its previous opinion in
Thomas
and adopting the Supreme Court’s “fully persuasive dicta” in
Shannon v. United States,
The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentences on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their fact-finding responsibilities, and creates a strong possibility of confusion.
Pabon-Cruz,
The appellate court in
Pabonr-Cruz,
it is respectfully suggested, too broadly interpreted
Shannon. Shannon
had held that a defendant had no legal right to a charge informing a jury of the consequences of a not guilty by reason of legal insanity verdict (commitment to a mental asylum).
Pabonr-Cruz
interpreted
Shannon’s
holding to mean that defendants have “no legal right to a charge informing the jury of [any of] the sentencing consequences of its decisions.”
Id.
at 94. Because
Thomas
had held that jurors have “no right” to engage in nullification — although they do have the power to do so — trial “courts have the duty to forestall or prevent such conduct.”
Id.
at 95 (citing
Thomas,
ii. Posi-Booker, Pabon-Cruz, Thomas and Shannon Require Reinterpretation
Pabonr-Cruz, Thomas,
and
Shannon
were all issued without guidance from
Booker
and the sea change in Sixth Amendment and sentencing practice it required. As demonstrated in Part IV.D,
supra,
courts must now interpret Sixth Amendment questions in light of the jury’s role in colonial times, when juries knew of — or were informed by the court of — the applicable sentences and had the recog
*438
nized ability to dispense mercy.
Cf. Pabon-Cruz,
Hi. Pabon-Cruz Applied to Polizzi
At Polizzi’s trial, the jury was not informed — despite defendant’s request — of the five-year mandatory minimum sentence consequent to a guilty verdict. This decision was based on the government’s argument before trial that Pabon-Cruz controlled and required denial of the request as a matter of law. If the trial court had indicated that it would inform the jury or allow the defendant to inform the jury of the mandatory minimum sentence, the government would almost certainly have sought an emergency stay and a writ of mandamus from the Court of Appeals for the Second Circuit, which likely would have been summarily granted following Pabon-Cruz. Because of recent Sixth Amendment Supreme Court constitutional jurisprudence, this court’s finding that Pa-bon-Cruz precluded it from issuing Poliz-zi’s requested jury instruction on sentencing was incorrect. Polizzi did have a Sixth Amendment right to a jury informed of the five-year minimum. See Part V, infra.
Technically, even if
Pabo'n-Cruz
withstood analysis
post-Booker,
the decision would not constitute binding authority on a
trial court’s discretion
to inform a jury of a mandatory minimum sentence. The writ of mandamus granted by the Court of Appeals for the Second Circuit in
Paboru-Cruz
was an unpublished summary order.
United States v. Pabon-Cruz,
No. 02-3080 (2d Cir. Oct. 11, 2002);
see Pabon-Cruz,
2. Gilliam Language Represents the Current General Role of the Informed Jury as Representative of Community Mores
In comparison with
Thomas
and
Pabon-Cruz,
language of the Court of Appeals for Second Circuit more in keeping with the jury’s traditional function is that in
United States v. Gilliam,
But there is harm done by his proposal, harm to the judicial process and the role of the jury in determining the guilt or innocence of the accused as charged. Gilliam’s proposal violates the very foundation of the jury system. It removes from the jury’s consideration an element of the crime, leaving the jury in a position only to make findings of fact on a particular element without knowing the true import of those findings. The jury speaks for the community in condemning such behavior, and it cannot condemn such behavior if it is unaware of the nature of the crime charged.
Gilliam,
Just as juries, according to Gilliam, cannot condemn behavior when they are unaware of all elements of the offense, to understand the full “nature of the crime” in our society juries must be aware of the severity of the consequences of its verdicts. Comprehending the “true import of [a jury’s] findings,” id. at 101, necessarily entails knowledge of a mandatory penalty in cases such as the one now before the court. That the jury in Polizzi should have been informed of the applicable mandatory minimum sentence is driven home by other language in Gilliam:
Our constitution guarantees the accused the right of a trial by a jury of his peers, primarily in order to ensure that the accused is judged by prevailing community mores. As Judge Learned Hand stated, the institution of the jury “introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.” As representatives of the people, the jurors can rebuke the accused for violation of community standards, morals, or principles. See, e.g., Witherspoon v. Illinois,391 U.S. 510 , 519 n. 15,88 S.Ct. 1770 ,20 L.Ed.2d 776 (1968) (“[O]ne of the most important functions any jury can perform ... is to maintain a link between contemporary community values and the penal system. ... ”). The jury is the oracle of the citizenry in weighing the culpability of the accused, and should it find him guilty it condemns him with the full legal and moral authority of the society. The public listens with rapt attention to the jury’s pronouncement of guilt or innocence, for in that singular moment the convictions and conscience of the entire community are expressed.
Id.
at 101 (emphasis added). Mandatory minimums reduce the impact of local community values on the penal system.
Cf. United States v. Lucania,
To ensure that the accused is judged by prevailing community mores in connection with “the penal system,” a jury applies its own judgment regarding the defendant’s culpability to determine whether the acts in question fit both society’s definition of the crime and the socially-approved punishment. As the Gilliam opinion declared, the jury is not a mere factfinder:
Without full knowledge of the nature of the crime, the jury cannot speak for the people or exert their authority. If an element of the crime is conceded and stripped away from the jury’s consideration, the jurors become no more than factfinders. The jury must know why it is convicting or acquitting the defendant, because that is simply how our judicial system is designed to work.
Id. at 101 (emphasis added). If the jury is unaware of the severity of a sentence, they become no more than menial factfinders rather than spokespersons for the community, as Gilliam and the Sixth Amendment ruled they must be.
3. In Polizzi’s Case, Informing the Jury of the Applicable Penalty Was Necessary Because of the Defendant’s Unusual Background and the Unknown Punishment
It must be emphasized that not all juries need to be, or perhaps should be, informed of applicable sentences. The discretion of the trial court will be exercised responsibly in accordance with colonial and British practice described in Part TV.A,
infra.
The case at bar is not typical, but one in which it was critical that the jurors “be aware of the moral consequences of their decisions.”
Pabon-Cruz,
[W]here .... the average juror might well not remotely imagine that advertising child pornography not only carries a harsher penalty than actually delivering it, but that the penalty is a mandatory ten years in prison, even for a defendant who is little more than a child himself.
Id. Here the special circumstances include the mandatory minimum sentence unknown to the jury, the need for psychiatric help in view of sexual childhood abuse, the locked door behind which viewing took place, and other factors.
F. Variability of Results Depending Upon the Informed & Non-Informed Jurors
Perhaps the most prejudicial aspect of a failure to be candid with the jury on the effect of its decision is that some juries may have a juror who knows the sentencing implications and will accurately inform his or her co-jurors in discussions, others will have no such informed person, and still others will have an ill-informed person with influence on the decision. This kind of exchange undoubtedly occurs frequently in juror deliberations, but is almost impossible to detect or even to investigate. See Fed.R.Evid. 606(b).
Disparate impact caused by disparate levels of juror knowledge can lead to serious equal protection and due process issues. See Milton Heumann & Lance Cassak, Not-So-Blissful Ignorance: Informing Jurors About Punishment in Mandatory Sentencing Cases, 20 Am. Crim. L.Rev. 343 (1983). See generally Katherine M. Sullivan & Gerald Gunther, Constitutional Law 467ff. (15th ed.2004) (discussing the origins of the due process clause as incorporating federal rights against the states). The excellent field work and analysis of Heumann and Cas- *441 sak as well as the reaction of the jurors in the instant case demonstrates that the due process and equal protection dangers both to defendants and the judicial system of silence by the court is substantial. Lack of candor and transparency here, as in so many other aspects of our democracy, creates an unnecessary hazard to justice.
The problem of the misinformed juror is reflected in the trial judge’s opinion in
United States v. Buck,
In the joint motion of all of the defendants criticism is expressed of the reference in the charge of the court to the fact that in the event any defendant was found guilty by the jury he would receive neither the maximum nor the minimum punishment provided by the statute. It is scarcely necessary, however, to refer to that matter. The very first argument to the jury by any of the attorneys for the defendants, being the argument by Mr. Swanson, began with the reading to the jury of the statute, including that part of the statute setting out the maximum punishment which might be imposed. Counsel then developed his argument by seeking to impress upon the jury that although the statute provided for a minimum punishment of a day in jail or a dollar fine, that no such punishment could be expected from the presiding judge in the event of a verdict of guilty. With the possible exception of counsel representing Mrs. Ryan (who say that they made no reference to the matter of punishment) every one of the six attorneys who argued for the defendants in this case dwelt on the fact that a penitentiary sentence might be imposed upon the defendants by the presiding judge. There was never in any case over which we have presided any such enlargement upon the subject of punishment possible under the statute. It is inconceivable that any one can believe that under such circumstances the presiding judge should not have referred at all to that matter in the charge. In what possible way could any defendant have been prejudiced by the fact that the jury was told that if that defendant was found guilty he would receive substantial and not a merely trifling punishment? In what possible way was any defendant prejudiced because the judge told the jury (after attorneys over and over again had referred to the maximum punishment provided in the statute) that the maximum punishment would not be imposed on any defendant?
Id. at 505.
Polling evidence suggests that informing juries could cause them to acquit more often, but that any such effect will be relatively slight and will not throw the federal courts into disarray. There are at least two reasons to infer that informing juries of mandatory mínimums will cause them to nullify in at least some cases. First, polls that ask generalized questions about jury nullification sometimes show that most Americans are willing to exercise some mercy if they believe it is morally right to do so. See Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury 55 (1999). Second, some public opinion polling data suggests that while jurors are generally supportive of mandatory mínimums in the abstract, when forced to analyze how the mandatory minimum statutes apply to some of the individual defendants before them, they become less willing to see doled out the harsh sentences required by such laws. See Brandon K. Applegate, et al., Assessing Public Support for Three-Strikes-and-You’re-Out Laws: Global Views Versus Specific Attitudes, 42 Crime & Delinquency 517 (1996) (finding that when respon *442 dents are given descriptions of a crime that would require life terms under three-strikes laws, most would not sentence defendant to life term, and that most favored exceptions to three-strikes laws in many situations, despite fact that eighty-eight percent of respondents said that they wanted the state to adopt a three-strikes law).
If juries use information on mandatory minimum sentences to nullify, they will likely do so judiciously. Notable is Heumann and Cassak’s interesting study of the Michigan Felony Firearm Statute. Heumann & Cassak, supra; see Mich. Comp. Laws Ann. § 750.2276 (Supp.1982). In 1977, Michigan passed a statute, known colloquially as the “Gun Law,” which required that any defendant who possessed a firearm while committing a felony receive a two-year sentence in addition to whatever sentence he otherwise would have received. Heumann & Cassak, supra, at 346. At the same time, the state launched a publicity campaign — replete with billboards and bumper stickers announcing that “one with gun gets you two” — to ensure that the public was aware of the new mandatory minimum. Id. at 347 & n. 15.
Heumann and Cassak hypothesized that juries would find the mandatory minimum to be unjust in many cases, and that many Michigan juries would be aware of the law even if it was never mentioned at trial due to the widespread publicity that accompanied its enactment. See id. at 346-47. They gathered information on how frequently juries acquitted defendants in Gun Law cases before and after the law was enacted. See id. at 349-52. Their hypothesis of increased nullification was not supported by the data. See id. Prior to 1977, eight of the eleven felonious assault cases that went to the jury resulted in acquittals. Id. at 352. After 1977, thirty-two of the forty-three cases that went to juries resulted in acquittals. Id. In percentage terms, 72.7% of the cases resulted in acquittals before the Gun Law, while after the Gun Law 74.7% resulted in acquittals. Id. at 352 n. 27. This increase is not statistically significant.
But Heumann and Cassak argued that despite this insignificant change in the acquittal rate, the Gun Law did cause some increase in nullification: they noted that their interviews with prosecutors, judges, and defense attorneys suggested that the strict Gun Law sentence caused juries to nullify. Id. They also pointed out that even if the acquittal rate did not increase significantly, juries did acquit more defendants, in absolute terms, after the passage of the law than before. Whatever one makes of these arguments, Michigan post-Gun Law juries likely aware of the mandatory minimum did not substantially increase nullification. There is no reason to suspect that informing juries of mandatory mínimums in the small number of cases where the defendant requests such a charge will create any crisis in law enforcement.
The Supreme Court’s fears of a slippery slope expressed in Shannon in giving juries sentencing information are unwarranted:
Moreover, Shannon offers us no principled way to limit the availability of instructions detailing the consequences of a verdict to cases in which an NGI [not guilty by reason of insanity] defense is raised. Jurors may be as unfamiliar with other aspects of the criminal sentencing process as they are with NGI verdicts. But, as a general matter, jurors are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense. See United States v. Thigpen,4 F.3d 1573 , 1578 (11th Cir.1993) (en banc), cert. *443 pending,510 U.S. 988 ,114 S.Ct. 542 ,126 L.Ed.2d 445 (1993); United States v. Frank,956 F.2d 872 , 879 (9th Cir.1991), cert. denied,506 U.S. 932 ,113 S.Ct. 363 ,121 L.Ed.2d 276 (1992). Because it is conceivable that some jurors might harbor misunderstandings with regard to these sentencing options, a district court, under Shannon’s reasoning, might be obligated to give juries information regarding these possibilities as well. In short, if we pursue the logic of Shannon’s position, the rule against informing jurors of the consequences of their verdicts would soon be swallowed by the exceptions.
Shannon v. United States,
G. Conclusion
Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury, nullification as “the great corrective of law in its actual administration.” Roscoe Pound,
Laiv in Books and Law in Action,
44 Am. L.Rev. 12, 18 (1910). And Learned Hand declared that nullification supplies the necessary “slack into the enforcement of law.”
United States ex rel. McCann v. Adams,
In Harry Kalven, Jr. and Hans Zeisel’s comprehensive and still valid study, The American Jury (1966), the authors concluded that in the relatively rare cases where the jury reaches a “different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of the facts, but because it gives recognition to values which fall outside the official rules.” Id. at 495. “It ... will move where the equities are. And where the equities are at any given time will depend on both the state of the law and the climate of public opinion.” Id. See also, e.g., Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19, 23 (2007) (“[M]any disagreements [between judges and juries] are explained by the fact that compared to judges, juries appear to require a stronger case by the prosecution to convict the defendant; or by the fact that juries infuse community notions of justice into their verdicts.” (citing, inter alia, Kalven and Zeisel, supra)). Above all, the experience of trial judges is that the jury is among our most conservative institutions. When in doubt we should trust its judgment, as did those who adopted the Sixth Amendment.
V. Defendant’s Motion to Inform the Jury of Mandatory Minimum Should Have Been Granted
As noted in Part II.B.4.b, supra, defendant repeatedly moved to have the jury informed of something it would not be expected to, and did not, know — the mandatory five-year minimum prison sentence required were it to find the defendant guilty of receiving as charged. It was demonstrated in Part IV, supra, that the court’s failure constituted a denial of defendant’s Sixth Amendment jury rights. Such an instruction is different from one *444 inviting the jury to nullify. It accords fully with Sixth Amendment rights to a jury which understands the effects and implications of its decision. See Part IV.A, supra.
That juries do have the power to refuse to convict or to convict of a lesser offense has been fully established.
See
Part IV,
supra; see, e.g., Neder v. United States,
Pre-Booker,
the Court of Appeals for the Second Circuit had “categorically rejected] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.”
Thomas,
The instant decision, requiring notice to the jury of the applicable minimum sentence, does not contravene precedents of the Court of Appeals for the Second Circuit against nullification suggestions to the jury by court and counsel. An instruction informing jurors of the five-year mandatory minimum sentence if the defendant is found guilty is not the same as a pro-nullification instruction. “This is an argument for the right of the jury to have that information necessary to decide whether a sentencing law should be nullified. This is not an argument for the right to have the jury instructed on jury nullification.”
*445
United States v. Datcher,
The right of jurors to be told of the high stakes of their decisions under a mandatory sentencing scheme so that they can decide to find a defendant guilty or innocent or guilty of a lesser crime “is a point independent of the right to nullify.” Milton Heumann & Lance Cassak, Not-So-Blissful Ignorance: Informing Jurors About Punishment in Mandatory Sentencing Cases, 20 Am.Crim. L.Rev. 343, 388 (1983).
The Supreme Court has suggested in dicta that a defendant is not entitled to an instruction about mandatory minimums.
See Shannon v. United States,
As of 2006, apparently only one recent federal court published decision approves allowing a defendant to inform the jury of mandatory sentences attendant to conviction.
Datcher,
As established in Part IV, supra, the Supreme Court’s new emphasis on colonial and British history contemporaneous with adoption of the Sixth Amendment now requires, in the narrow special group of cases illustrated by the current one, that the jury know of the mandatory minimum if that is what defendant asks for. A well-informed jury responsive to the needs of both society and the defendant might well consider, given the special circumstances of the present case, that intensive psychiatric treatment and control outside of prison is the desirable end to this criminal litigation. Such an approach might, in these unusual circumstances, do more to protect society than a long prison term with the rudimentary psychiatric help likely to be available behind prison walls. It would recognize that ultimately prisoners must be released and that the return of unrehabilitated prisoners to society presents a serious danger. See Prisoner Reentry, 20 Fed. Sent’g Rep. (Dec.2007).
A verdict of not guilty by reason of insanity, which might well have resulted from a proper charge, would not have meant release. Rather, it would have led to a suitable institution for treatment — the sensible result suggested by jurors in the instant case. See 18 U.S.C. § 4243.
A. Defendant’s Rule 33 Motion Should Be Granted
Pursuant to Polizzi’s Rule 33 motion,
see
Def.’s Mot. to Vacate J., Docket Entry No. 123, the verdict on Counts One to Twelve is set aside and defendant is granted a new trial on those counts because he was denied his Sixth Amendment right to trial by an informed jury and because the interest of justice so requires.
See
Fed.R.Crim.P. 33(a) (“Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.”). Federal Rule of Criminal Procedure 33 “confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”
United States v. Sanchez,
Although a Rule 33 motion normally must be filed within seven days of the jury verdict, see Fed.R.Crim.P. 33(b)(2) (“Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty.”), the seven-day rule may be flexibly applied. See Fed.R.Crim.P. 45(b)(1)(B) (“When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party’s motion made ... after the time expires if the party failed to act because of excusable neglect.”).
Before the 2005 amendments, the Federal Rules did not permit such extensions of time.
See, e.g., Carlisle v. United States,
Since Polizzi has moved to vacate his guilty verdict under Rule 33, he has waived any possible double jeopardy objections to a retrial. Ordering a new trial without a defense motion could amount to double jeopardy in violation of the Fifth Amendment.
See United States v. Smith,
Had defendant not moved under Rule 33 for a new trial, this court probably could not have set aside the verdict. Courts of Appeal are more or less in agreement that a trial court does not have the power to sua sponte grant a new trial under Rule 33.
See United States v. Vanterpool,
Courts may “suggest! ] to defense counsel that a motion for a new trial might be appropriate.” Wright et al.,
supra,
§ 551, at 460-61 (citing
Vanterpool,
B.Error Was Prejudicial
A new trial is required in the interests of justice because the error was not harmless. Not instructing the jury on the statutory minimum sentence prejudiced the defendant. “The propriety of jury instructions is a question of law ... [T]he question is whether the challenged instruction misled the jury as to the correct legal standard or did not adequately inform the jury on the law.”
United States v. Goldstein,
Unless the error is harmless, the convictions must be vacated. “An erroneous instruction is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.”
Id.
To evaluate harmlessness, the court must “appraise the significance of an error ... by comparing the instructions actually given with those that should have been given.”
United States v. Salameh,
A new trial must be granted on the receiving counts in the interests of justice as a result of the court’s failure to charge the jury on the mandatory minimum. That the evidence was legally sufficient to support the verdict is irrelevant when a court commits prejudicial error in its jury charge.
See United States v. Casciano,
No new trial need be granted on the possession counts. There was no spillover effect since the evidence would have been essentially the same if only possession had been charged.
C.Sentence
The court finds accurate, and adopts, the applicable guideline level of 31 and the criminal history category of I, which results in a guideline range of 108 to 135 months. See Addendum to the Presen-tence Report 2. It applies 18 U.S.C. § 3553(a).
After
Booker,
the Sentencing Guidelines are no longer mandatory.
United States v. Booker,
*449 On the possession counts, a concurrent prison term of one year and a day is a sufficient period of incarceration. In light of the specific sentencing factors outlined in 18 U.S.C. § 3553(a), specifically: “(1) the nature and circumstances of the offense and the history and characteristics of the defendant”; [and] “(2) the need for the sentence imposed,” a year and a day in prison appropriately reflects the seriousness of the offense, provides just punishment, and satisfies specific and general deterrence. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A)-(D). Specific deterrence is satisfied by this term of imprisonment, a large fine, a long period of supervised release, the intense shame created by the felony convictions, and the cost of defense. General deterrence is sufficiently achieved by the serious penalties. Based on Polizzi’s lack of criminal history, a higher sentence required by mechanical application of the Sentencing Guidelines, would be excessive. His past as a law-abiding businessman and loving father, and the mental scars he suffers from childhood sexual abuse are given weight by the court in arriving at a reasonable sentence. See § 3553(a).
The defendant needs psychiatric treatment while in prison and during a succeeding ten-year period of supervised release. As members of the jury believed, the community will be better served if Polizzi improves with psychiatric care rather than be destroyed by prison. Supervised release is not insignificant. It is a substantial restriction on freedom.
See Gall v. United States,
— U.S. -,
Registration as a sex offender and its serious effects provides powerful general deterrence as well as long-term protection of the public; it eliminates some of the need for incapacitation through prison. Forfeiture of defendant’s equipment and pornographic pictures also contributes to specific and general deterrence.
This sentence is imposed pursuant to 18 U.S.C. § 3553. The guideline computation by Probation, conceded to be correct by the government, permits a much longer sentence. The court adopts the presen-tence report computation as correct and does not depart from the Guidelines. See §§ 3553(a), (4)(A), and (5). Rather, it applies all elements of section 3553(a) and 3553(b) after full consideration of each element of those provisions. See transcript and videotape of hearing and oral rulings on sentence.
VI. Conclusion
A. Constitutionality of Statute
Defendant’s motion to declare the statute unconstitutional as written, charged, and applied is denied because of ruling authority. See Part III.A, supra. Upon appeal, constitutionality and the language of the statute should be reconsidered for the reasons stated in Part III.A, supra. The issue of unconstitutionality applies to both the receiving and possessing counts. Id. If the statute is ruled unconstitutional, the case should be dismissed.
B. New Trial as to Counts One Through Twelve
For the reasons stated in Part IV, supra — failure to exercise the court’s discretion to notify the jury of the mandatory minimum sentence — the verdict is set *450 aside on Counts One through Twelve, charging receiving child pornography. A new trial on those counts is granted, unless the statute as to those counts is declared unconstitutional on appeal.
C. Sentence on Counts Fourteen Through Twenty-Four
On Counts Fourteen through Twenty-Four, defendant will be principally sentenced to one year and one day in prison, a fine of $50,000, a special assessment of $1100, and a supervised release term of ten years. In prison and while on supervised release he shall receive psychiatric treatment. Upon release from prison he shall register as a sex offender.
D. Stay
No stay is required since the defendant is presently incarcerated. He will remain so pursuant to his sentence while the parties prosecute a possible appeal. Should an appeal not be decided before defendant’s term of incarceration ends, a further stay can be sought in the Court of Appeals for the Second Circuit.
SO ORDERED.
Appendices
A. Selected Bibliography on Historic Powers of Jurors When Sixth Amendment Was Adopted
Books & Other Nonperiodic Materials
Neil Vidmar & Valerie P. Hans, American Juries: The Verdict 221^40 (2007).
Jury Ethics: Jury Conduct and Jury Dynamics 93ff., 156, 173-80 (John Klein & James P. Levine eds.2006).
John Hostettler, The Criminal Jury Old and New: Jury Power from Early Times to the Present Day (2004).
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 28-29, 38, 70-71, 157 (2004).
William L. Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles and Future in American Democracy (2004).
John H. Langbein, The Origins of the Adversary Criminal Trial (2003).
Randolph N. Jonakit, The American Jury System (2003).
James Q. Whitman, Harsh Justice: Criminal Punishments and the Widening Divide Between American and Europe 7 (2003).
Paula L. Hannaford-Agor, et al., Nat’l Ctr. for State Cts., Are Hung Juries a Problem?: Executive Summary (2002).
Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury (1999).
Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (1998).
R.H. Helmholz, The Privilege Against Self-Incrimination: Its Origins and Development (1997).
ABA Crim. Justice Standards Committee, ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed.1996).
Norman J. Finkel, Commonsense Justice: Jurors’ Notions of the Law (1995).
William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society 1760-1830 (1994).
Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (Harv. Univ. Press 2000) (1994).
Shannon C. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence Before John Marshall 60-62,142-48 (1990).
Twelve Good Men and True: The Criminal Trial Jury in England 1200-1800, at 206-07, 212-13 (J.S. Cockburn & Thomas A. Green eds., 1988).
*451 Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Jury Trial: 1200-1800 (1985).
1 Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 86, 746 n. 18 (Paul A. Freund gen. ed., Macmillan Co., 1971).
Harry Kalven, Jr. & Hans Zeisel, The American Jury 306-28, 433, 495 ff. (1966).
1 Julius Goebel, Jr., The Law Practice of Alexander Hamilton 808-11 (1964).
James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger (1963).
Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750: The Movement for Reform: 1750-1833, at 92-93, 598-99 (1948).
Julius Goebel, Jr., Cases and Materials on the Development of Legal Institutions 298-329 (1946).
Julius Goebel, Jr., Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776) passim (1944).
Arthur P. Scott, Criminal Law in Colonial Virginia 84 (1930).
Charles A. Beard, The Office of Justice of the Peace in England 80 (1904).
2 Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I, at 624-32 (2d ed. Little, Brown 1903).
Ernest I. Morgan, Jurors as Judges of the Law, in Civil and Criminal Cases, at Common Law, Prior to Our Revolution, available at The Making of Modern Law (Thomson Gale 2008), http://0-galenet. galegroup.cm.pegasus.law.columbia.edu:80/ servlet/MOML?af=RN & ae=F104061642 & srchtp=a & ste=14 (last visited January 24, 2008).
The Three Trials of William Hone (Tegg ed. 1876).
Thomas H. Cornish, The Juryman’s Legal Handbook and Manual of Common Law (Longman, Brown, Green, & Long-mans 1843).
1 Joseph Chitty, A Practical Treatise on the Criminal Law (1816).
4 William Blackstone, Commentaries on the Laws of England (1759).
Henry Lintot (pr.), The Complete Juryman: A Complete Compendium of the Laws Relating to Jurors 194-203, 246-47, 260-61 (1752).
Richard Fineway (pr.), The English-Maris Right, A Dialogue Between A Barrister at Law and a Jury-Man (1680).
Periodicals
Laura I. Appleman, The Lost Meaning of the Jury Trial Right, http://ssrn.com/ abstract=1084960 (Feb. 27, 2008).
Roger A. Fairfax, Jr., Harmless Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L.Rev. 2027 (2008).
Lance Cassak & Milton Heumann, Old Wine in New Bottles: a Reconsideration of Informing Jurors About Punishment in Determinate-and Mandatory-Sentencing Cases, 4 Rutgers J.L. & Pub. Pol’y 411 (2007).
Robert L. Jones, Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction, 82 N.Y.U. L.Rev. 997 (2007).
Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379 (2007).
Jack N. Rakove, The Original Justifications for Judicial Independence, 95 Geo. L.J. 1061 (2007).
Chris Kemmitt, Ftmction Over Form: Reviving the Criminal Jury’s Historical Role as a Sentencing Body, 40 U. Mich. J.L. Reform 93 (2006).
*452 Arie M. Rubenstein, Note, Verdicts of Conscience: Nullification and the Modem Jury Trial, 106 Colum. L.Rev. 959 (2006).
Teresa L. Conaway, Carol L. Mutz, & Joann M. Ross, Jury Nullification: A Selective, Annotated Bibliography, 39 Val. U.L.Rev. 393 (2004-05).
Pamela Baschab, Jury Nullification: The Anti-Atticus, 65 Ala. Law. 110 (2004).
Thom Brooks, A Defence of Jury Nullification, 10 Res Publica 401 (2004) (Netherlands).
Steve J. Shone, Lysander Spooner, Jury Nullification, and Magna Carta, 22 Quin-nipiac L.Rev. 651 (2004).
Rachel E. Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L.Rev. 33 (2003).
Paula L. Hannaford-Agor & Valerie P. Hans, Nullification at Work? A Glimpse from the National Center for State Courts Study of Hung Juries, 78 Chi.-Kent L.Rev. 1249 (2003).
Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 Va. L.Rev. 311 (2003).
Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78 Chi.-Kent L.Rev. 937 (2003).
Nancy S. Marder, Juries, Drug Laws & Sentencing, 6 J. Gender Race & Just. 337 (2002).
Simon Stern, Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bu-shell’s Case, 111 Yale L.J. 1815 (2002).
Norman J. Finkel, Is Justice Us? Commonsense Justice, Culpability, and Punishment, 28 Hofstra L.Rev. 669 (2000).
John Clark, The Social Psychology of Jury Nullification, 24 Law & Psych. Rev. 39 (2000).
David A. Pepper, Nullifying History: Modem-Day Misuse of the Right to Decide the Law, 50 Case W. Res. L.Rev. 599 (2000).
Matthew P. Harrington, The Law-Finding Function of the American Jury, 1999 Wis. L.Rev. 377 (1999).
Ran Zev Schijanovich, Note, The Second Circuit’s Attack on Jury Nullification in United States v. Thomas: In Disregard of the Law and the Evidence, 20 Cardozo L.Rev. 1275 (1999).
Sherman J. Clark, The Courage of Our Convictions, 97 Mich. L.Rev. 2381 (1999).
David C. Brody, Balancing Jury Secrecy and the Rule of Law: The Second Circuit’s Guide to Removing Nullifying Jurors, 20 Just. Sys. J. 113 (1998).
Stanton D. Krauss, An Inquvry into the Right of Criminal Juries to Determine the Law in Colonial America, 89 J.Crim. L. & Criminology 111 (1998).
Elizabeth Haynes, Note & Comment, United States v. Thomas: Pulling the Jury Apart, 30 Conn. L.Rev. 731 (1998).
Jeffrey Abramson, Two Ideals of Jury Deliberation, 1998 U. Chi. Legal F. 125 (1998).
Jack B. Weinstein, The Many Dimensions of Jury Nullification, 81 Judicature 168 (1998).
Darryl K. Brown, Jury Nullification Within the Rule of Law, 81 Minn. L.Rev. 1149 (1997).
Lawrence W. Crispo, Jill M. Slanksy & Geanene M. Yriarte, Jury Nullification: Law Versus Anarchy, 31 Loy. L.A. L.Rev. 1 (1997).
Richard St. John, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997).
*453 Aaron T. Oliver, Jury Nullification: Should the Type of Case Matter?, 6 Kan. J.L. & Pub. Pol’y 49 (1997).
W. William Hodes, Lord Brougham, the Dream Team, and Jury Nullification of the Third Kind, 67 U. Colo. L.Rev. 1075 (1996).
Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L.Rev. 253 (1996).
John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification-Justice or the “Wacko Fringe’s” Attempt to Further its Anti-Government Agenda?, 34 Duq. L.Rev. 1225 (1995-96).
David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 Am.Crim. L.Rev. 89 (1995).
Paul Butler, Racially Based Jury Nullification: Black Poicer in the Criminal Justice System, 105 Yale L.J. 677 (1995).
Clay S. Conrad, Jury Nullification as a Defense Strategy, 2 Tex. F. on C.L. & C.R. 1 (1995).
David N. Dorfman & Chris K. Iijima, . Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. Mich. J.L. Reform 861 (1995).
Gregory Mitchell, Comment, Against “Ovenvhelming” Appellate Activism: Constraining Harmless Error Review, 82 Cal. L.Rev. 1335 (1994).
Anne Bowen Poulin, The Jury: The Criminal Justice System’s Different Voice, 62 U. Cin. L.Rev. 1377 (1994).
Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to Do Justice? 30 Am.Crim. L.Rev. 239 (1993).
Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131 (1991).
Alan W. Scheflin & Jon M. Van Dyje, Merciful Juries: The Resilience of Jury Nullification, 48 Wash. & Lee L.Rev. 165 (1991).
Chaya Weinberg-Brodt, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L.Rev. 825 (1990).
Richard M. Fraher, Conviction According to Conscience: The Medieval Jurists’ Debate Concerning Judicial Discretion and the Law of Proof, 7 Law & Hist. Rev. 23 (1989).
John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 Am. J. Legal Hist. 201 (1988).
Phillip B. Scott, Jury Nullification: An Historical Perspective on a Modem Debate, 91 W. Va. L.Rev. 389 (1988).
Kenneth A. Krasity, The Role of the Judge in Jury Trials: The Elimination of Judicial Evaluation of Fact in American State Courts from 1795 to 1913, 62 U. Det. J. Urb. L. 595 (1984-85).
John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L.Rev. (1983).
Milton Heumann & Lance Cassak, Not So Blissful Ignorance: Informing Jurors About Punishment in Mandatory Sentencing Cases, 20 Am.Crim. L.Rev. 243 (1983).
Randall McGowen, The Image of Justice and Reform of the Criminal Law in Early Nineteenthr-Century England, 32 Buff. L.Rev. 89 (1983).
Douglas Greenberg, Crime Law Enforcement, and Social Control in Colonial America, 26 Am. J. Legal Hist. 294, 302, 323, 305-14 (1982).
Deirdre A. Harris, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suffolk U.L.Rev. 968 (1978).
*454 John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. Chi. L.Rev. 263 (1978).
Anthony A. Morano, Historical Development of the Inten-elationship of Unanimous Verdicts and Reasonable Doubt, 10 Val. U.L.Rev. 223 (1975-76).
Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 Tex. L.Rev. 488 (1975).
Leo P. Dreyer, Jury Nullification and the Pro se Defense: The Impact of Dough-erty v. United States, 21 U. Kan. L.Rev. 47 (1972-73).
Alan W. Scheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L.Rev. 168 (1972).
Robert J. Stolt, Jury Nullification: The Forgotten Right, 7 New Eng. L.Rev. 105 (1971).
William N. Kunstler, Jury Nullification in Conscience Cases, 10 Va. J. Int’l L. 71 (1969).
Book Reviews: Looking Backward: The Early History of American Law, 33 U. Chi. L.Rev. 867 (1965-66).
Note, The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170 (1964-65).
Milton M. Klein, Prelude to Revolution in New York: Jury Trials and Judicial Times, 17 Wm. & Mary Quarterly 439 (1960).
G.D. Nokes, The English and the Law of Evidence, 31 Tul. L.Rev. 153 (1956-57).
Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 Harv. L.Rev. 582 (1938-39).
Francis R. Aumann, The Influence of English and Civil Law Principles Upon the American Legal System During the Critical Post-Revolutionary Period, 12 U. Cin. L.Rev. 289 (1938).
B. State Statutory Mínimums and Child Pornography Statutes
Overview of State Child Pornography Possession and Receipt Statutes Prescribed Periods of Incarceration for First-Time Offenders
Alabama knowing possession 13 months-10 years
knowing possession w/ intent to disseminate 10 years-10 years
Alaska knowing viewing 0-2 years
knowing possession 2-12 years
knowing possession w/ intent to distribute 5-10 years
Arizona knowing possession 5 years (child depicted age 15-18),
17 year’s (under 15)
knowing receipt 5 years (15-18), 17 years (under 15)
Arkansas knowing viewing 3-10 years
knowing possession 3-10 years
knowing receipt 3-10 years
knowing receipt by computer 5-20 years
California knowing possession up to 1 year-
knowing possession w/ intent to distribute up to 1 year
knowing possession 12-18 months Colorado
*455 knowing possession w/ intent to distribute 4-12 years
Connecticut knowing possession (fewer than 20 images) 1-5 years
knowing possession (20-50 images) 2-10 years
knowing possession (greater than 20 images) 5-20 years
Delaware knowing possession Up to 3 years
intentional possession by computer Up to 8 years
intentional receipt by computer Up to 8 years
Florida knowing possession Up to 5 years
knowing receipt Up to 5 years
possession w/ intent to promote Up to 15 years
Georgia intentionally or willfully receives 1-20 years
knowing possession 5-20 years
knowing possession w/ intent to sell or distribute 5-20 years
Hawaii knowing possession Up to 5 years
Idaho knowing and willful possession Up to 10 years
knowing possession for a commercial purpose Up to 30 years
Illinois knowing possession 2-5 years
knowing possession if child depicted under 13 3-7 years
knowing possession w/ intent to disseminate 4-15 years
knowing possession w/ intent to disseminate (child under 13) 6-30 years
Indiana knowing or intentional possession 6 months-3 year’s
Iowa knowing possession Up to 2 years
Kansas knowing possession Subject to Kansas Guidelines
Kentucky knowing possession indeterminate sentence; maximum must be between 1-5 years
knowing possession w/ intent to distribute indeterminate sentence; maximum must be between 1-5 years
Louisiana intentional possession 2-10 years
intentional possession w/ intent to sell or distribute 2-10 years
Maine knowing possession Up to 1 year
intentional or knowing possession (child under 12) Up to 5 years
knowing possession w/ intent to disseminate (child under 16) Up to 5 years
knowing possession w/ intent to disseminate (child under 12) Up to 10 years
Maryland knowingly possess and intentionally retain Up to 2 years
knowing possession w/ intent to distribute Up to 10 years
Massachusetts knowing possession Up to 5 year's (state prison);
*456 Up to 2.5 years (jail)
knowing possession w/ intent to disseminate 10-20 years
Michigan knowing possession Up to 4 years
receipt for purpose of distributing or promoting • Up to 7 years
preparation to receive Up to 7 years
Minnesota knowing possession Up to 5 years
Mississippi possession 5-40 years
knowing receipt 5-40 year’s
receipt w/ intent to distribute 5-40 years
Missouri knowing possession Up to 4 years
knowing possession w/ intent to promote (minor) Up to 7 years
knowing possession w/ intent to promote (child) 5-15 years
Montana knowing possession (child depicted is 16-18) Up to 100 years or life
knowing possession (child under 16) 4-100 year's
knowing possession (child under 12) 100 years
possession w/ intent to sell (child is 16-18) Up to 100 years or life
possession w/ intent to sell (child is under 16) 4-100 years
possession w/ intent to sell (child is under 12) 100 year's
Nebraska knowing possession w/ intent to rent, sell, deliver, distribute, trade, or provide to any person .1-5 years
Nevada knowing and willful possession 1-6 years
New Hampshire knowing possession Up to 7 years
possession for purposes of sale or other commercial dissemination Up to 7 year's
knowing receipt Up to 7 year-s
New Jersey knowingly possession Up to 18 months
knowing receipt for purpose of selling 6-10 year-s
New Mexico intentional possession 18 months
New York knowing possession (of child pornography) 1 (or 1/3 of maximum)-4 years
knowing possession (of obscene child pornography) 1 (or 1/3 of maximum)-4 years
North Carolina knowing possession 4-6 months
knowing receipt 13-16 months
North Dakota knowing possession Up to 5 year-s Ohio
possession (of material depicting child in state of nudity) 6-12 months
knowing possession (of obscene material depicting minor) 6-18 months
knowing receipt 6-18 months
Ohio possession (of material depicting child in state of nudity) 6-12 months
knowing possession (of obscene material depicting minor) 6-18 months
*457 knowing receipt 6-18 months
Oklahoma possession Up to 5 years
knowingly downloads 30 days-10 years
knowingly keeps for sale 30 days-10 years
knowing possession Up to 20 years
Oregon knowing possession Up to 1 year
knowing possession w/ intent to induce or engage child Up to 5 years
knowing possession for the purpose of satisfying a sexual desire with knowledge or awareness that creation of material involved child abuse Up to 5 years
knowing possession to use to induce or engage child Up to 10 years
knowing possession with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell with knowledge or awareness that creation of material involved child abuse Up to 10 years
Pennsylvania knowing possession Up to 7 years
knowing possession for the purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others Up to 7 years
Rhode Island knowing possession Up to 5 years
South Carolina knowing possession Up to 10 years
knowing receipt 2-10 years
South Dakota knowing possession Up to 10 years
Tennessee knowing possession (less than 50 images) 2-12 years
knowing possession (50-100 images) 3-15 years
knowing possession (greater than 100 images) 8-30 year's
knowing possession w/ with the intent to promote, sell, distribute, transport, purchase or exchange material (under 25 images) 3-15 years
knowing possession w/ with the intent to promote, sell, distribute, transport, purchase or exchange material (greater than 25 images) 8-30 year's
knowing possession of obscene child pornography (under 25 images) 3-15 years
knowing possession of obscene child pornography greater than 25 images 8-30 years
Texas knowing or intentional possession 2-10 years
knowing possession w/ intent to promote 2-20 years
Utah knowing possession 1-15 year's
knowing possession w/ intent to distribute 1-15 year-s
Vermont knowing possession (of lewd exhibition of genitals) Up to 2 years
knowing possession (of child engaged in sexual conduct) Up to 5 years
Virginia knowing possession 1-5 years
*458 possession w/ intent to sell, give away, distribute, transmit, or display 5-20 years
Washington knowing possession Up to 10 years
possession with intent to develop, duplicate, publish, print, disseminate, exchange, or sell Up to 5 years
West Virginia knowing possession Up to 2 years
Wisconsin knowing possession (offender is under 18) Up to 3 years, 6 months
knowing possession (offender is over 18) 3-25 years
knowing possession w/ intent to sell or distribute (offender is under 18) Up to 12 years, 6 months
knowing possession w/ intent to sell or distribute (offender is over 18) 5-40 years
Wyoming knowing possession Up to 10 years
knowing receipt 5-10 years
knowing possession w/ intent to deliver 5-10 years
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C. Federal Statutory Mínimums
(Source: Ricardo H. Hinojosa, Chair, United States Sentencing Commission, Statement Before the House Judiciary Committee Subcommittee on Crime, Ter *488 rorism and Homeland Security (June 26, 2007).)
Statutory Provisions Requiring Mandatory Minimum Terms of Imprisonment *
Minimum Term of U.S.Code Section Description of Crime Imprisonment
2 U.S.C. § 192 Refusing to testify before Congress 1 month
2 U.S.C. § 390 Failure to appear, testify, or produce documents when 1 month subpoenaed for contested election case before Congress
7 U.S.C. § 13a Disobeying cease and desist order by registered entity 6 months
7 U.S.C. § 13b Disobeying cease and desist order by person other than a 6 months registered entity
7 U.S.C. § 15b(k) Violating provisions of cotton futures contract regulation 30 days
7 U.S.C. § 195(3) Violation of court order by packer or swine contractor 6 months concerning packers and stockyards
7 U.S.C. § 2024(b)(1) Second and subsequent offense; illegal food stamp activity; 6 months _value of $100 to $4,999_
7 U.S.C. § 2024(c) Second and subsequent offense; presentation of illegal food 1 year stamp for redemption; value of $100 or more
8 U.S.C. § 1324(a)(2) (B) (I) First or second offense, bringing in or harboring certain 3 years aliens where the offense was committed with the intent or with reason to believe that the unlawful alien will commit a felony
8 U.S.C. § 1324(a)(2)(B)(I) Third or subsequent offense, bringing in or harboring 5 years certain aliens where the offense was committed with the intent or with reason to believe that the unlawful alien will commit a felony
8 U.S.C. § 1324(a) (2)(B)(ii) First or second offense, bringing in or harboring certain 3 years aliens where the offense was committed for the purpose of _commercial advantage or private financial gain_
8 U.S.C. § 1324(a)(2)(B)(ii) Third or subsequent offense, bringing in or harboring 5 year’s certain aliens where the offense was committed for the _purpose of commercial advantage or private financial gain
8 U.S.C. § 1326(b)(3) Reentry of an alien removed on national security grounds 10 years
12 U.S.C. § 617 Commodities price fixing 1 year-
12 U.S.C. § 630 Embezzlement, fraud, or false entries by banking officer 2 years
15 U.S.C. § 8 Trust in l’estraint of import trade 3 months
15 U.S.C. § 1245(b) Possession/use of a ballistic knife during commission of 5 years federal crime of violence
15 U.S.C. § 1825(a)(2)(c) Killing of horse official Death or life
16 U.S.C. § 414_Trespassing on federal land for hunting or shooting 5 days
18 U.S.C. § 33(b) Damage to or destruction of a motor vehicle carrying high 30 years level radioactive waste or spent nuclear fuel with intent to endanger safety of person
18 U.S.C. § 115(b)(3)_First degree murder of a federal official’s family member Death or life
18 U.S.C. § 225(a) Organizes/manages/supervises a continuing financial crime 10 years enterprise which receives $5M or more within any 24-month period
18 U.S.C. § 229A(a)(2) Develop/produce/acquires/transfer/possess/use any chemical Death or life _weapon that results in the death of another person
18 U.S.C. § 351(a) First degree murder of a member of Congress, Cabinet, or Life Supreme Court
*489 18 U.S.C. § 844(f) Maliciously damages, or attempts to damage, property of 5 years the U.S. by means of fire or explosives
18 U.S.C. § 844(h) First offense involving the use of fire or explosives to 10 year enhancement commit a felony; penalty enhancement
18 U.S.C. § 844(h) Second or subsequent offense involving the use of fire or 20 year enhancement explosives to commit a felony; penalty enhancement
18 U.S.C. § 844(1) Use of fire or explosives to destroy property used in 5 years interstate commerce
18 U.S.C. § 844(o) First offense involving the transfer of explosive materials to 10 year enhancement be used to commit crime of violence or drug trafficking crime
18 U.S.C. § 844(o) Second or subsequent offense involving the transfer of 20 year- enhancement explosive materials to be used to commit crime of violence or drug trafficking crime
18 U.S.C. § 924(e)(l)(A)(I) First offense, using or carrying a firearm during a crime of 5 years violence or drug trafficking crime; penalty enhancement provision
18 U.S.C. § 924(c)(l)(A)(ii) First offense, brandishing a firearm during a crime of 7 years violence or drug trafficking crime; penalty enhancement provision
18 U.S.C. § 924(e)(l)(A)(iii) First offense, discharging a firearm during a crime of 10 years violence or drug trafficking crime; penalty enhancement provision
18 U.S.C. § 924(c)(l)(B)(I) First offense, firearm is a short-barreled rifle, short-bar- 10 years reled shotgun
18 U.S.C. § 924(e)(l)(B)(ii) First offense, firearm is a machinegun or destructive device 30 year's or the firearm is equipped with a silencer or muffler
18 U.S.C. § 924(e)(l)(C)(I) Second or subsequent conviction under § 924(e)(1)(A) 25 years
18 U.S.C. § 924(c)(l)(C)(ii) Second or subsequent conviction under § 924(c)(1)(A) and Life firearm is a machinegun or destructive device or the firearm is equipped with a silencer or muffler
18 U.S.C. § 924(c)(5)(A) Possession or use of armor piercing ammunition during a 15 years crime of violent or drug trafficking crime; penalty enhancement provision
18 U.S.C. § 924(e)(1) Possession of a firearm or ammunition by a fugitive or 15 years addict who has three convictions for violent felonies or drug offenses
18 U.S.C. § 929(a)(1) Carrying firearm during violent crime/drug trafficking, 5 year enhancement penalty enhancement
18 U.S.C. § 930(c) First degree murder involving the possession or use of a Death or life firearm or other dangerous weapon in a Federal Facility.
18 U.S.C. § 1028A(a)(l) Aggravated identity theft 2 years
18 U.S.C. § 1028A(a)(2) Aggravated identity theft in relation to any offense listed at 5 years 18 U.S.C. 2332b(g)(5)(B) (Federal Clime of Terrorism)
18 U.S.C. § 1111(a) First degree murder Death or life
18 U.S.C. § 1114 First degree murder of federal officers Death or Life
18 U.S.C. § 1116 First degree murder of foreign officials, official guests, or Death or Life internationally protected persons
18 U.S.C. § 1118 Murder in a federal correctional facility by inmate sen- Death or life tenced to a term of life imprisonment
*490 18 U.S.C. § 1119(b) First degree murder of a U.S. national by a U.S. national Death or Life while outside the United States
18 U.S.C. § 1120 Murder committed by a person who escaped from a Feder- Death or Life al correctional institute
18 U.S.C. § 1121(a)(1) First degree murder of a state or local law enforcement Death or Life officer or any person assisting in a federal criminal investigation
18 U.S.C. § 1121(b)(1) Killing of a state correctional officer by an inmate 20 years
18 U.S.C. § 1122 Selling or donating, or the attempt to do so, of HIV positive 1 year tissue or bodily fluids to another person for subsequent use other than medical research
18 U.S.C. § 1201(g)(1) Kidnapping of a minor (under the age of eighteen) 20 years
18 U.S.C. § 1203(a) Hostage taking resulting in the death of any person Death or life
18 U.S.C. § 1466A(a) Production/possession/receipf/transport of obscene visual Mandatory minimum term representations of the sexual abuse of children of imprisonment specified at section 2252A(b)(l)
18 U.S.C. § 1503(b)(1) First degree murder of an officer of the court or a juror Death or life
18 U.S.C. § 1512(a)(1) First degree murder of any person with the intent to Death or life prevent their attendance or testimony in an official proceeding
18 U.S.C. § 1512(a)(2) Obstructing justice by using, or attempting to use, physical Death or life force against another
18 U.S.C. § 1512(a)(3)(A) Obstructing justice by tampering with a witness, victim, or Death or life an informant
18 U.S.C. § 1591(b)(1) Sex trafficking of children under the age of 14 by force, 15 years fraud or coercion
18 U.S.C. § 1591(b)(2) Sex trafficking of children, over the age of 14 but below the 10 years age of 18, by force, fraud or coercion
18 U.S.C. § 1651 Piracy under the laws of nations Life
18 U.S.C. § 1652 Piracy by a citizen of the United States Life
18 U.S.C. § 1653 Piracy against the United States by an alien Life
18 U.S.C. § 1655 Piracy in the form of assault on a commander Life
18 U.S.C. § 1658(b) Preventing escape from a sinking vessel OR holding out a 10 years false light, or extinguishing a true light with intent to cause distress to a sailing vessel
18 U.S.C. § 1661 Robbery ashore by a pirate Life
18 U.S.C. § 1751(a) Killing the President of the United States, the next in the Life order of succession to the Office of the President, or any person who is acting as the President of the United States; or any person employed in the Executive Office of the President or Office of the Vice President
18 U.S.C. § 1917 Interference with Civil Service Examinations 10 days
18 U.S.C. § 1956(h) Racketeering; conspiracy to commit any offense listed in Mandatory minimum term sections 1956 or 1957 of imprisonment applicable to the underlying offense
18 U.S.C. § 1958(a) Causing death through the use of interstate commerce Death or life facilities in the commission of a murder-for-hire
*491 18 U.S.C. § 2113(e) Bank robbery; avoiding apprehension for bank robbery; 10 years; but if death • escaping custody after a bank robbery; causing death in results, death or life the course of a bank robbery
18 U.S.C. § 2241(c) First offense, engaging in a sexual act with a child under 30 years the age of 12, or engaging in a sexual act by force with a child who is above the age of 12, but under the age of 16
18 U.S.C. § 2241(c) Second or subsequent offense, engaging in a sexual act with Life a child under the age of 12, or engaging in a sexual act by force with a child who is above the age of 12, but under the age of 16
18 U.S.C. § 2250(c) Fails to register as a sex offender and commits a crime of 5 years violence
18 U.S.C. § 2251(a) Engaging in explicit conduct with a child for the purpose of 15 years; if the offender producing any visual depiction of such conduct has one prior conviction for sexual exploitation, 25 years; if the offender has two or more prior convictions for sexual exploitation, 35 years; if death results, 30 years
15 year's; if the offender has one prior conviction for sexual exploitation, 25 years; if the offender has two or more prior convictions for sexual exploitation, 35 years; if death results, 30 year’s 18 U.S.C. § 2251(b) Engagement in explicit conduct by a parent or legal guardian with a child for the purpose of producing any visual depiction of such conduct
18 U.S.C. § 2251(c) Enticing a minor to engage in explicit conduct for the 15 years; if the offender pur-pose of producing any visual depiction of such conduct has one prior conviction for sexual exploitation, 25 years; if the offender has two or more prior convictions for sexual exploitation, 35 years; if death results, 30 years
15 years; if the offender has one prior conviction for sexual exploitation, 25 years; if the offender has two or more prior convictions for sexual exploitation, 35 years; if death results, 30 years 18 U.S.C. § 2251(d) Producing or publishing a notice or advertisement seeking or offering a visual depiction of a child engaging in an elicit ■ sexual act
18 U.S.C. § 2251(e) Sexual exploitation of children, penalties 15 year's; if the offender has one prior conviction for sexual exploitation, 25 years; if the offender has two or more prior convictions for sexual exploitation, 35 years; if death results, 30 years
18 U.S.C. § 2251A(a) Sale of a child by a parent or legal guardian for the purpose 30 years of sexual exploitation
18 U.S.C. § 2251A(b) Purchasing a child for the purpose of sexual exploitation 30 years
18 U.S.C. §§ 2252(a)(l)-(3) Interstate transportation of visual depictions of a minor 5 year's; if the offender has engaging in sexually explicit conduct; receipt: sale, or a prior conviction for sexu-poSsession with intent to sell visual depictions of a minor al exploitation of children, engaging in sexually explicit conduct 15 years
*492 18 U.S.C. § 2252(a)(4) Possession of visual depictions of a minor engaging in 10 years if the offender has sexually explicit conduct a prior conviction for sexual exploitation of children
5 years for violations of sections 2252(1)(3); 15 year's for a second or subsequent violation of section 2252(l)-(3); 10 years for a second or subsequent violation of section 2252(4) 18 U.S.C. § 2252(b) Certain activities relating to material involving the sexual exploitation of minors; penalties
18 U.S.C. §§ 2252A(a)(l)- Interstate transportation of child pornography 5 years; 15 years for a (4), (6) second or subsequent violation
-18 U.S.C. § 2252A(a)(5) Possession of child pornography 10 years if the offender has a prior conviction for possession of child pornography
18 U.S.C. § 2252A(b) Child pornography, penalties 5 years for violations of sections 2252A(l)-(4),(6); 15 years for second or subsequent violations of sections 2252A(l)-(4), (6); 10 years for second or subsequent violations of section 2252A(5)
18 U.S.C. § 2252A(g) Child exploitation enterprise 20 years
18 U.S.C. § 2257(1) Failure to keep records of sexually explicit depictions 2 year's
18 U.S.C. § 2260(a) Use of a minor in the production of sexually explicit de- Mandatory minimum term pictions of a minor for importation into the United States of imprisonment specified at section 2251(e)
18 U.S.C. § 2260(b) Use of a visual depiction of a minor engaging in sexually Mandatory minimum term explicit conduct with the intent of importing the visual of imprisonment specified depiction into the United States at section 2252(b)(1)
18 U.S.C. § 2260A Penalty enhancement for registered sex offenders who 10 year enhancement commit specified offenses involving a minor
18 U.S.C. § 2261(b)(6) Stalking in violation of a restraining order, or other order 1 year described in 18 U.S.C. § 2266
18 U.S.C. § 2381 Treason 5 years
18 U.S.C. § 2422(b) Coercion, via mail or any facility of interstate commerce, of 10 years a minor for illegal sexual activity
18 U.S.C. § 2423(a) Transporting a minor aci-oss state lines for the purpose of 10 years prostitution or another sexual activity which can be charged as a criminal offense
18 U.S.C. § 2423(e) Attempt or conspiracy to transport a minor across state 10 years lines for the purpose of prostitution or another sexual activity which can be charged as a criminal offense
18 U.S.C. § 3559(e)(1) Sentence enhancement; upon conviction for a serious vio- Life lent felony, if offender has two or more prior serious violent felony convictions, or one or more prior serious violent felony convictions and one or more prior serious drug offense convictions, apply enhancement
18 U.S.C. § 3559(d)(1) Sentence enhancement; if the death of a child of less than Life 14 years results from a serious violent felony as described in section 3591(a)(2), apply enhancement
*493 18 U.S.C. § 3559(e)(1) Sentence enhancement; where a federal sex offense com- Life mitted against a minor and the offender was has a prior sex conviction in which a minor was the victim, apply enhancement
18 U.S.C. § 3559(f)(1) Sentence enhancement; murder of child less than 18 30 years
18 U.S.C. § 3559(f)(2) Sentence enhancement; kidnapping or maiming of child 25 years less than 18
18 U.S.C. § 3559(f)(3) Sentence enhancement; crime of violence resulting in seri- 10 years ous bodily injury or if a dangerous weapon is used during and in relation to the crime of violence
19 U.S.C. § 283 Failure to report seaboard saloon purchases to customers 3 months
21 U.S.C. § 212 Practice of pharmacy and sale of poisons in China 1 month
21 U.S.C. § 461(c) Killing any person engaged in or on account of performance Death or life of his official duties as a poultry or poultry products inspector
21 U.S.C. § 622 Bribery of meat inspectors and acceptance of bribes 1 year
21 U.S.C. § 675 Killing any person engaged in or on account of performance Death or life of his official duties as a meat inspector
21 U.S.C. § 841(a) Manufacturing, distributing, dispensing, or possessing a Mandatory minimum term controlled substance or counterfeit substance with intent to of imprisonment specified distribute at section 841(b)
21 U.S.C. § 841(b)(1)(A) Third offense, manufacturing, distributing, or possessing Life with intent to distribute
21 U.S.C. § 841(b)(1)(A) Second offense; manufacturing, distributing, or possessing Life with intent to distribute, death or serious bodily injury results
21 U.S.C. § 841(b)(1)(A) Second offense; manufacturing, distributing, or possessing 20 years with intent to distribute; no death or serious bodily injury
21 U.S.C. § 841(b)(1)(A) Fh'st offense; manufacturing, distributing, or possessing 20 years with intent to distribute; death or serious bodily injury results
21 U.S.C. § 841(b)(1)(A) First offense, manufacturing, distributing, or possessing 10 years with intent to distribute; no death or serious bodily injury
21 U.S.C. § 841(b)(1)(B) Second or any subsequent offense; manufacturing, distrib- Life uting, or possessing with intent to distribute, death or serious bodily injury results
21 U.S.C. § 841(b)(1)(B) First offense; manufacturing, distributing, or possessing 20 years with intent to distribute, death or serious bodily injury results
21 U.S.C. § 841(b)(1)(B) Second and all subsequent offenses; manufacture, distribu- 10 years tion, or possession with intent to distribute, no death or serious bodily injury results
21 U.S.C. § 841(b)(1)(B) First offense; manufacture, distribution, or possession with 5 years intent to distribute, no death or serious bodily injury results
21 U.S.C. § 841(b)(1)(C) Second or any subsequent offense; manufacturing, distrib- Life, fine uting, or possessing with intent to distribute, death or serious bodily injury results from use
21 U.S.C. § 841(b)(1)(C) First offense; manufacturing, distributing, or possessing 20 years with intent to distribute, death or serious bodily injury results from the use
*494 21 U.S.C. § 844(a) First offense; simple possession of a controlled substance, substance contains cocaine base and weighs more than 5 grams 5 years
21 U.S.C. § 844(a) Second offense; simple possession, substance contains cocaine base and weighs more than 3 grams 5 years
21 U.S.C. § 844(a) Third and all subsequent offenses; simple possession, substance contains cocaine base and weighs more than 1 gram 5 years
21 U.S.C, § 844(a) Third and all subsequent offenses, simple possession (other than cocaine base) 90 days
21 U.S.C. § 844(a) Second offense; simple possession (other than cocaine base) 15 days
21 U.S.C. § 846 Attempt and conspiracy under Chapter 13 — Drug Abuse Prevention and Control: SubchapterOffenses and Penalties Mandatory minimum term of imprisonment applicable to the underlying offense
21 U.S.C. § 848(a) Second and all subsequent convictions; continuing criminal enterprise 30 years
21 U.S.C. § 848(a) First offense; continuing criminal enterprise 20 years
21 U.S.C. § 848(b) Any offense; principal administrator, organizer, or leader (“ldngpin”) of continuing criminal enterprise Life
21 U.S.C. § 848(e)(1) Engaged in a continuing criminal enterprise and intentionally lolls an individual or law enforcement officer 20 years
21 U.S.C. § 851 Proceedings to establish prior convictions; sentence enhancement provisions 1 year
21 U.S.C. § 859(a) First offense; distribution to persons under the age of 21 years 1 year
21 U.S.C. § 859(b) Second and subsequent offenses; distribution to persons under the age of 21 years 1 year
21 U.S.C. § 860(a) First offense; distribution of a controlled substance near a school or similar facility 1 year
21 U.S.C. § 860(b) Second offense; distribution of a controlled substance near a school or similar facility 3 years
21 U.S.C. § 860(b) Third offense; distribution of a controlled substance near’ a school or similar facility Mandatory minimum term of imprisonment specified at section 841(b)(1)(A)
21 U.S.C. § 861(a) Employment or use of persons under 18 years of age in drug operations Mandatory minimum term of imprisonment specified at section 841(b)
21 U.S.C. § 861(b) First offense; knowingly and intentionally employing or using a person under 18 years of age in drug operations 1 year
21 U.S.C. § 861(c) Second and subsequent offense; knowingly and intentional- 1 year ly employing or using a person under 18 years of age in drug operations
21 U.S.C. § 861(c) Third offense; knowingly and intentionally employing or using a person under 18 years of age in drug operations Mandatory minimum term of imprisonment specified at section 841(b)(1)(A)
21 U.S.C. § 861(f) Knowingly or intentionally distributing a controlled substance to a pregnant individual 1 year
21 U.S.C. § 960(a) Importing or exporting controlled substances Mandatory minimum term of imprisonment specified at section 960
*495 21 U.S.C. § 960(b)(1) Second or'any subsequent offense; unlawful import or Life export, death or serious bodily injury results
21 U.S.C. § 960(b)(1) Second or any subsequent offense; unlawful import or 20 years export, no death or serious bodily injury results
21 U.S.C. § 960(b)(1) First offense; unlawful import or export, death or serious 20 years bodily injury results
21 U.S.C. § 960(b)(1) First offense; unlawful import or export, no death or 10 years serious bodily injury results
21 U.S.C. § 960(b)(2) Second or any subsequent offense; unlawful import or Life, fine export, death or serious bodily injury results
21 U.S.C. § 960(b)(2) Second or any subsequent offense; unlawful import or 10 years export, no death or serious bodily injury results
21 U.S.C. § 960(b)(2) First offense; unlawful import or export, death or serious 20 years bodily injury results
21 U.S.C. § 960(b)(2) First offense; unlawful import or export, no death or 5 years serious bodily injury results
21 U.S.C. § 960(b)(3) Second or any subsequent offense; unlawful import or Life export, death or serious bodily injury results
21 U.S.C. § 960(b)(3) First offense; unlawful import or export, death or serious 20 years bodily injury results
21 U.S.C. § 963 Attempt and conspiracy under Chapter 13 — Drug Abuse Mandatory minimum term Prevention and Control: Subehapter — Import and Export of imprisonment applicable to the underlying offense
21 U.S.C. § 1041(b) Killing any person engaged in or on account of performance Death or life of his official duties under Chapter 15 — Egg Products Inspection
22 U.S.C. § 4221 Forgery of notary seal 1 year
33 U.S.C. § 410 Navigable water regulation violation 30 days
33 U.S.C. § 411 Deposit of refuse or obstruction of navigable waterway 30 days
33 U.S.C. § 441 New York and Baltimore harbors, deposit of refuse 30 days
33 U.S.C. § 447 Bribery of inspector of New York or Baltimore harbors 6 months
42 U.S.C. § 2272(b) Violation of prohibitions governing atomic weapons; no 25 years death resulting
42 U.S.C. § 2272(b) Using, attempting to use, or threatening while possessing, 30 years an atomic weapon
42 U.S.C. § 2272(b) Violation of prohibitions governing atomic weapons; death Life of another resulting
46 U.S.C. § 58109(a) Individual convicted of violating merchant marine act 1 year
47 U.S.C. § 13 Refusal to operate railroad or telegraph lines 6 months
47 U.S.C. § 220(e) Falsely entering or destroying books or accounts of com- 1 year mon carrier
49 U.S.C. § 46502(a)(2)(A) Committing or attempting to commit aircraft piracy in 20 years special aircraft jurisdiction of the United States; no death of another individual
49 U.S.C. § 46502(a)(2)(B) Committing or attempting to commit aircraft piracy in Death or life special aircraft jurisdiction of the United States; resulting in death of another individual
*496 49 U.S.C. § 46502(b)(1)(A) Violation of Convention for the Suppression of Unlawful 20 years Seizure of Aircraft outside special aircraft jurisdiction of United States; no death of another individual
49 U.S.C. § 46502(b)(1)(B) Violation of Convention for the Suppression of Unlawful Death or life Seizure of Aircraft outside special aircraft jurisdiction of United States; resulting in death of another individual
49 U.S.C. § 46506(1) Application of certain criminal laws to acts on aircraft if in Mandatory minimum term special maritime and territorial jurisdiction of the United of imprisonment applicable States to the underlying offense