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Saturday, March 16, 2013

Richard Bistline: Because of Age and Health, Possessor of Child Porn Avoids Prison

     In 2007, 67-year-old Richard Bistline lived with his ailing wife in Mount Vernon, a central Ohio town of 17,000 not far from Columbus, the state capital. In October of that year, FBI agents came to his home, arrested him for possessing child pornography, and seized his home computer. A search of Bistline's computer revealed 305 images and 56 videos of eight to ten-year-old girls being raped by adult men. Bistline had downloaded this material from an online program called "Limewire" which provided access to child pornography without a fee.

     Three years after his arrest, Bistline pleaded guilty in a Columbus U. S. District Court to one count of possessing child pornography. The Sentencing Guidelines for this federal offense, as established by Congress, consisted of a sentence of between 63 and 78 months in prison.

     Assistant United States Attorney Deborah A. Solove, in preparation for Bistline's sentencing hearing before federal judge James L. Graham, submitted a detailed memorandum outlining the government's argument for a sentence that fell within the established guidelines.

     Judge Graham, a 1986 Reagan appointee who was Bistline's age, opened the sentence hearing with statements that telegraphed his decision to be lenient with the child porn possessor. Noting that mere possession of this kind of material did not constitute a very serious offense, Judge Graham declared the federal Sentencing Guidelines for the crime "seriously flawed." The judge also stated that in determining who should go to prison and who shouldn't, the age and health of the convicted person are important considerations. Judge Graham said that he was worried that Mr. Bistline, who over the past decade had suffered two strokes, would not receive adequate health care in prison. Moreover, if he sent this man away, who would care for his sick wife?

     Judge Graham shocked the federal prosecutor when he handed down his sentence of one night in the federal courthouse lockup. That was it. No prison time for a man caught in possession of images and videos of young girls being raped by adult men. Congress and its sentencing guidelines be damned.

     After prosecutor Solove objected to the sentence as being extremely lenient, and outside the bounds of the guidelines, Judge Graham convened a second sentencing hearing two months later. At that hearing, the judge simply added ten years of supervised release to his original sentence. Still no prison time for Mr. Bistline.

     Assistant Unites States Attorney Deborah Solove appealed Judge Graham's sentence to the 6th Circuit Court of Appeals in Cincinnati on the grounds the district court judge had improperly rejected the federal Sentencing Guidelines in this case.

     In January 2012, the panel of three appellate judges handed down its decision. The federal appeals court justices held that a district court judge cannot, without a "compelling" reason, ignore sentencing guidelines created by the U. S. Congress. The justices ruled that in the Bistline case, Judge Graham's personal belief that the guidelines were too harsh for the possession of child porn did not constitute a "compelling" reason for ignoring them.

     In justifying this legal decision, the appellate court laid out the following rationale: "Knowing possession of child pornography...is not a crime of inadvertence, of pop-up [computer] screens and viruses that can incriminate an innocent person. Possession of child pornography instead becomes a crime when a defendant knowingly acquires the images--in this case, affirmatively, deliberately, and repeatedly, hundreds of times over, in a period exceeding a year."

     The 6th Circuit justices noted that Mr. Bistline never expressed genuine remorse for his actions. In fact, the defendant said he didn't understand why the possession of child pornography was even a crime. (Bistline was also angry at FBI agents for seizing his illegally downloaded music along with the child pornography.)

     The 6th Circuit Court of Appeals justices ruled that Judge Graham's sentence "... did not remotely meet the criteria that Congress laid out. We vacate Bistline's sentence and remand his case for prompt imposition of one that does."

     In January 2013, at Bistline's third sentencing hearing, federal prosecutor Solove urged Judge Graham to sentence the defendant to five years in prison. Intent on keeping this man out of prison, Judge Graham sentenced him to three years of home confinement. This sentence is a far cry from the recommended sentence of 63 to 78 months behind bars. If Judge Graham thinks the federal sentencing guideline for the possession of child pornography is too harsh, he should run for Congress. Otherwise, as a judge, he should follow the law.

     

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