Judges Don't Know How the Internet Works

Let's just call this an ongoing series, because it is going to be.

I wrote about a year ago about the Judge who didn't understand how video games worked. Well now we have one who doesn't understand how facebook works.

From the ABAJournal:

A federal appeals court is citing a trial judge’s apparent dislike of Facebook in a decision to vacate an eight-year sentence for a defendant accused of producing child pornography.
During the sentencing, Senior U.S. District Judge Warren Eginton of Connecticut stated he would have sentenced the defendant to six years in prison if not for his concerns about Facebook and the need for general deterrence, according to the March 19 summary order by the New York-based 2nd U.S. Circuit Court of Appeals.

Federal sentencing laws are a mess. Years ago there weren't any guidelines and so there was no consistency. One judge would give 10 years for drug possession. One would give 2 years for distribution of drugs. The Congress started setting strict sentencing terms, but these were ruled unconstitutional in US v Booker. So, now there is a weird middle ground. There is a recommended range for sentencing based on the type of crime and factors like the use of a weapon. You run the formula for sentencing adding up the factors and it spits out a sentence. The judge doesn't have to accept the sentence but they need to have a compelling reason to go outside of them. The health of the defendant, or the specific circumstances of the case, might all be reasons.

Another reason is if the judge thinks that the sentence should be harsher to serve as a deterrent to other people. If the crime has been around forever then general deterrence probably isn't a reasonable argument, but if this case brings a twist on it (like internet stalking or selling drugs on silk road) judges may want to punish it more harshly to prevent people from catching on the the new crime trends.

This case involved a woman and man who produced child pornography involving an 8 year old child. She got a slight sentence reduction for testifying against him. We don't know the details of the case (because children are involved) but we know that the internet was not involved in this case, because the Appeals court specifically says so.

(Total speculation, but from the cases I've seen involving couples molesting a child together, the child is usually related to the woman. A daughter or niece or someone else. It is easier for women to have access to children since people are wary of men, but female sexual abuse is wildly under reported. In part, this under reporting is because people believe the narrative of the woman not being the active abuser. The man is the abuser, and the woman is just going along with it because she is abused or is desperate to make him happy. People think the man is sick and the woman must just be desperate. Another weird bit of patriarchy being pro-women, we're too pure and good to ever do something like abuse a child for sexual pleasure)

Anyway, this case didn't involve the internet yet the judge goes on about facebook and society and...oh, just read it yourself in a Grandpa Simpson voice

In justifying its decision to impose a sentence of eight years instead of six, the district court referenced “Facebook, and things like it, and society has changed.” ... The court speculated that the proliferation of Facebook would facilitate an increase in child pornography cases. The court said it hoped Mark Zuckerberg (who founded Facebook) was “enjoying all his money because . . . he’s going to hurt a lot of people . . . .”

Well, somebody saw the Social Network!

Don't worry though. The case is going back for re-sentencing and the judge at that point could still impose the 8 years, as long as they give an actual reason based on the facts of the case instead of one about facebook.

In this particular case there isn't much harm in the fact that this 90 year old judge doesn't understand how the internet works. So, child molester lady gets 2 more years in jail. Big deal.

What is scary is that this same judge could be sitting on a case next week involving deciding if a piece of evidence found on a hard drive is admissible.  Or if a case belongs in federal court when the parties did business online. More and more cases involve elements of technology and judges are not known for being early adopters of technology. The Supreme Court still does not allow cameras in oral arguments or live broadcasts of hearings. So, how can they be expected to properly understand cases about doxxing and iPhone apps.

The lesson to lawyers is to explain, explain, explain. Better to write an over detailed explanation than assume the have knowledge and then lose out.