A few months ago, I wrote about how The Sixth Circuit is a Sentencing Court in cases involving the possession of child pornography. In addition to the unfortunate case of Richard Bistline, I catalogued several examples of Sixth Circuit panels requiring that this crime be punished by a prison sentence, even though Congress itself saw fit to impose no mandatory minimum, and in spite of several district courts’ well-reasoned decisions to impose non-prison sentences.
In truth, however, no judge—whether on a district or appellate court—has as much power to sentence a criminal as the federal prosecutor who charged him. In most cases, real federal sentencing takes place before a grand jury has even returned an indictment.
The prosecutors who charged Richard Bistline faced a critical choice at the beginning of their prosecution: they could charge him with "possession" of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), or they could charge him with "receipt" of child pornography in violation of 18 U.S.C. § 2252(a)(2). These two crimes prohibit "virtually identical conduct," since there is "no principled distinction between possessing and receiving child pornography." United States v. Robinson, 669 F.3d 767, 776 n.2 (6th Cir. 2012). The only meaningful difference between them is the punishment. Whereas "possession" carries no mandatory minimum, "receipt" requires a five year prison sentence. Federal prosecutors wield virtually unreviewable discretion to say who must go to prison for five years, regardless of what any judge might later think about the appropriateness of a prison sentence.
In the Bistline case, the prosecutors charged possession—perhaps because of the same mitigating factors that ultimately led Judge Graham to impose a non-prison sentence, including old age, frailty, and low risk of re-offending. Because of that charging decision, Mr. Bistline was allowed to ask for a non-prison sentence (and receive one, twice, until the Sixth Circuit intervened).
Other defendants have not been so lucky. Take the extremely troubling case of United States v. Dylan Marshall, Sixth Cir. No. 12-3805 (Nov. 21, 2013).
At the "chronological age" of twenty, Dylan Marshall was arrested and charged with receipt, rather than possession, of child pornography. It is not clear why. From his Sixth Circuit brief (record citations omitted):
Dylan was born with Human Growth Hormone Deficiency (HGHD), an extremely rare condition that puts his case in a distinct context. During the Sentencing Hearing . . . , a clinical psychologist who evaluated Dylan emphasized the "unique situation here" when he testified, "I had never, in the 5,000 forensic evaluations I’ve done, had an individual who had human growth hormone deficiency." Because of this rare disorder, Dylan was literally unable to grow up. In all meaningful ways—physically, psychologically, socially, and sexually—Dylan was a juvenile when he possessed or received child pornography.
Regarding his cognitive development, the district court found Dylan "had the mental capacity of a minor both at the time the crime was committed and at the time of sentencing." [The] clinical psychologist who evaluated Dylan found that he had . . . a mental age of fifteen and a half years. . . . A licensed clinical supervisor, Maralyn Logsdon, observed that Dylan had "multiple psychological" disorders, including "a dysthymic disorder and a personality disorder." These psychological conditions went untreated prior to Dylan’s arrest. . . .
Because of this extreme social isolation and his late entry into puberty, Dylan has had little sexual experience. One of his few sexual experiences was abuse by an older male cousin. Dylan was anally raped on five or six occasions when he was twelve years old. Dylan had not received mental health treatment for this abuse prior to this case.
Dylan pled as charged to receipt of child pornography and was sentenced accordingly. To the prosecutor who charged him, this probably looked like justice. But to Jack Zouhary, the district judge who had the unenviable (and purely ministerial) task of imposing the prosecutor’s chosen sentence, it looked like nothing of the sort.
After conducting two separate sentencing hearings, hearing live testimony, and allowing the development of a full record, Judge Zouhary found that the "uncontroverted evidence" demonstrates that "at the time of the crime Defendant was, and should be characterized for sentencing as, a developmentally immature teenager lacking the ability to appreciate the illegality of child pornography and to control his viewing of easily accessible internet content."
Given these extraordinary circumstances, Judge Zouhary found that a sentence of five years would be "excessive, unjust, and greater than necessary." He explained that the "imposition of excessive prison time will only destroy an opportunity for [Dylan] to live a constructive life," particularly given the safety concerns facing somebody like Dylan in an adult prison.
But his hands were tied. The prosecutor had already sentenced Dylan to five years in prison. Judge Zouhary had no choice but to impose a sentence that he firmly believed to be unlawful. In doing so, however, he literally begged the Sixth Circuit to step in and fix this injustice:
It is my hope that I will get relief from the Court of Appeals. It will not be me that is unable to sleep at night because this defendant must serve five years. It will have to be because three other people or more have reviewed this case and found that to be so. . . . I want to thank everyone for their efforts in what has been probably the most difficult case I’ve had to handle since being on the bench.
Dylan Marshall would get no such relief. The Sixth Circuit predictably rejected his as-applied challenge to the five-year mandatory minimum based on the Eighth Amendment and Miller v. Alabama, 132 S. Ct. 2455 (2012), which prohibits mandatory life sentences for juveniles. As Judge McKeague explained for the majority, the Eighth Amendment analysis draws a bright line at the chronological age of eighteen:
Marshall is at the very most an immature adult. An immature adult is not a juvenile. Regardless of the source of the immaturity, an immature adult is still an adult. Because Marshall is not a juvenile, he does not qualify for the Eighth Amendment protections accorded to juveniles.
Judge Lawson disagreed with the majority’s refusal to allow the consideration of any "developmental features" which might render somebody a juvenile for Eighth Amendment purposes. But he ultimately concurred in the judgment because the five-year sentence was not "grossly disproportionate to the crime."
While that could have been the end of the case, Judge Lawson took the opportunity to say more—about the prosecutor. And thank God somebody finally did.
A district judge himself, Judge Lawson agreed with the Judge Zouhary’s finding that Dylan’s sentence is "excessive," "unjust," and "almost certainly  greater than necessary to achieve any rational sentencing objectives."
He said that this case is an "injustice" because of "the government’s decision to charge . . . receipt rather than possession," a decision which was "woefully uninformed and even irresponsible."
In spite of these grievances, however, Judge Lawson acknowledged that "defendants like Dylan Marshall are out of luck." In our system of mandatory minimum sentencing, federal prosecutors’ unfettered charging discretion amounts to unfettered sentencing discretion. Justice be damned.
Kudos to Judge Zouhary and Judge Lawson for speaking up about this injustice, particularly given their acknowledged inability to do anything at all to fix it.
And shame on the Government for its inexplicable handling of this case—from its "irresponsible" charging decision to its failure to correct the error after the scope of Dylan's rare condition became clear.
But the Government (and only the Government) can still make things right. In the new year, I hope the United States Attorney for the Northern District of Ohio will remember his oath to seek justice. I hope he will fix this case.