On March 11, 2013, the Department of Justice “filed a
one-count information . . . against John Bradley Nash” which charged that “on
or about June 28, 2012, possessed child pornography” in violation of 18 U.S.Code § 2252A(a)(5)(B). U.S. v. Nash, 2014 WL 868628 (U.S.District Court for the Northern District of Alabama 2014). “On April 29, 2013,
Mr. Nash pled guilty to that charge.” U.S. v. Nash, supra. You can, if you are
interested, read more about the case in the news story you can find here.
Nash was twenty-two years old when this federal judge
sentenced him. U.S. v. Nash, supra. In this
opinion, the U.S. District Court Judge who has the case explains why she
sentenced Nash to “60 months probation with special conditions.” U.S. v. Nash, supra. She notes that “[t]he
court imposes this unusual sentence because of unusual circumstances.” U.S. v.
Nash, supra.
As to the facts in the case, the judge explains that
[a]s a result of the execution of a
sealed warrant and the review of [Nash’] computer and cell phone, investigators
found images of 16–year–old female E.L. on Nash's cell phone. These four images
showed E.L. involved in lewd and lascivious behavior that qualifies as child
pornography.
During an initial interview, E.L.
admitted that she was in a consensual sexual relationship with Nash and that
she took the pictures of herself and sent them to Nash. During a subsequent
interview, E.L. stated that Nash persuaded her to take the pictures of herself
but Nash denies that persuaded E.L. to take the pictures.
U.S. v. Nash, supra. In a footnote, the judge points out that “ten
images were found on Nash's phone, but six of those images were duplicates of
the four different images.” U.S. v. Nash,
supra.
Nash was sentenced under the U.S. Sentencing Guidelines,
which governs sentencing in the federal system. As Wikipedia explains,
Guidelines sentencing is “based primarily on two factors: 1. the conduct associated with the offense
(the offense conduct, which produces the offense level) [and] 2. the defendant's criminal history (the
criminal history category)”. This site provides an overview of the process, which includes a presentence report and a
sentencing hearing, both of which occurred in this case.
In her opinion, the judge notes that “[a]ccording to the
presentence report, the base offense level of 32 was calculated” through the
following process:
`The guideline for 18 U.S. Code §
2252A(a)(5)(B) offenses is found in . . . § 2G2.2 of the guidelines.
However, according to the cross reference at § 2G2.2(c)(1), if the offense
involved causing, transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for the purpose
of producing a visual depiction of such conduct, § 2G2.1 is to be applied if
the resulting offense level is greater. [Nash] caused and requested E.L. to
send images of herself involved in lewd and lascivious behavior. Therefore, the
base offense level is 32 pursuant to § 2G2.1(a), which is greater than that
calculated at § 2G2.2.’
U.S. v. Nash, supra (quoting
Presentence Investigation Report).
She also explained that after Nash objected to the finding
above,
the court found he did not admit facts
that supported the applicability of § 2G2.2(c)(1); the Government offered
no testimony on these disputed facts. Therefore, the court did not apply that
provision without evidence from which to make a factual determination. Instead,
the court applied the base offense level from § 2G2.2(a)(1), which is 18,
because [Nash] was convicted of a violation of 18 U.S. Code §
2252A(a)(5)(B).
Two levels were added
according to § 2G2.1(b)(2)(A) because the offense involved sexual contact; one
of the four photos showed E.L. inserting her finger into her vagina. No other
enhancements applied, so the adjusted offense level was 20. Nash received the maximum of three levels
reduction for acceptance of responsibility, resulting in a total offense level
of 17. Combined with a criminal history category of I, based on a criminal
history score of zero, the resulting guideline range was twenty-four to thirty
months.
U.S. v. Nash, supra.
The judge also held a sentencing hearing on
November 7, 2013. Prior to the hearing,
the court received and reviewed the Presentence Report, a forensic psychosexual
evaluation of Nash, and numerous letters from [his] friends and family. During
the hearing, the court heard testimony from Matthew Moe, a long-time friend of
Nash; Dr. Frankie Preston, Nash's psychologist; John Nash, Nash's father; and
Nash himself.
U.S. v. Nash, supra.
That might have been the end of things, but this judge
explained that she had
serious concerns about the
appropriateness of the Guidelines sentence in this case. The court is not alone
in this view, as other courts have expressed similar concerns with the
Sentencing Guidelines, particularly as they apply to child pornography cases.
For example, Judge Mark Bennett, from
the Northern District of Iowa, has expressed concern about the Sentencing
Guidelines generally. He noted that after they were implemented, `discretion in
sentencing was shifted from judges to prosecutors’ and `prosecutors largely
controlled sentencing because things like mandatory sentences and guideline
ranges were determined by decisions they made.’ [Mark Bennett & Mark Osler, The Wrong People Decide Who Goes To Prison, CNN.com December 3,2013. . . .] According to Judge Bennett, the change `not only resulted in a
remarkable surge in incarceration, [but] it does not seem to solve the problem
of disparities.’ Id.
Specifically addressing the child
pornography guidelines, Judge James L. Graham, from the Southern District of
Ohio, recently noted that `[t]here is widespread agreement among judges,
lawyers and legal scholars that the guidelines for child pornography offenses
are seriously flawed.’ U.S. v. Childs, 2013 WL 5512846, at *1 (U.S. District Court for the S.D.Ohio 2013). Judge Graham points out that the Sentencing Commission itself has `publicly
declared that the existing guidelines for child pornography offenses were
flawed in need of repair’ and
notes that the Department of Justice `expressed its agreement.’
U.S. v. Childs, supra.
U.S. v. Nash, supra.
She also noted that in U.S.
v. Dorvee, 616 F.3d 174 (U.S. Court of Appeals for the 2d Circuit 2010),
the appellate court cautioned that U.S. District Court Judges should take seriously
the broad discretion that
they possess in fashioning sentences under § 2G2.2, keeping in mind that
they are dealing with an `eccentric Guideline of highly unusual provenance
which, unless carefully applied, can easily generate unreasonable results.’ U.S. v. Dorvee, supra. Such is the
case here, where a first-time offender, who possessed four different images
sent to him by his girlfriend with whom he had a legal and consensual sexual
relationship, faced a guideline sentence that maxed out at the statutory
maximum of 120 months before this court refused to apply a higher Guideline
provision.
U.S. v. Nash, supra.
The judge also explained that she was “particularly
troubled” by the application of the
Sentencing Guidelines to `sexting’
cases involving a consensual and legal relationship. Sexting is a widespread
phenomena among teenagers and young adults. Regardless of the appropriateness
of engaging in such virtual conversations, the court doubts that this behavior
is the kind that Congress was targeting when it passed child pornography laws.
While Nash's relationship with E.L. may
be inappropriate, it was perfectly legal in the state of
Alabama where the age of consent is sixteen. See Alabama Code §13A–6–70(c)(1). The difference in age between Nash and E.L. was six years, and
the difference in maturity levels was likely less than that. Based on the
forensic psychosexual evaluation and Dr. Preston's testimony, Nash was an
emotionally immature twenty-two-year-old young man with untreated ADHD who
entered into a an ill-advised -- but perfectly legal -- relationship and
received four lascivious picture messages from his sixteen-year-old girlfriend.
U.S. v. Nash, supra
(emphasis in the original).
The judge therefore found that the “the child pornography
Guidelines do not truly reflect the kind of conduct involved in this case” and
therefore set about “trying to craft a sentence that is sufficient but not
greater than necessary to comply with the statutory purpose of sentencing.” U.S. v. Nash, supra. She noted, first,
that
looking to the nature and circumstances
of the offense, the court considers the rampant nature of sexting in today's
society, particularly among teenagers and young adults. Numerous individuals
and organizations have written articles and conducted studies on the topic of
sexting in recent years, both within the legal community and outside of it. In
March 2009, National Public Radio highlighted the `Disturbing New Teen Trend,’
noting that states are responding to the problem in `wildly different ways,
with everything from felony charges to educational assemblies on the dangers of
the Internet.’
U.S. v. Nash, supra. She also cited and quoted other sources that
emphasized the frequency of sexting among American teen-agers and the “`most [do
not] realize their actions are illegal and could qualify them for a
decades-long sex offender registration requirement.’” U.S. v. Nash, supra (quoting Elizabeth C. Eraker, Stemming
Sexting: Sensible Legal Approaches to Teenagers' Exchange of Self–Produced
Pornography, 25 Berkely Tech. L.J. 555 (2010)). She said she also took into account “the
proliferation of sexting among young people today and its unintended
consequences as a factor in determining Nash's sentence.” U.S. v.
Nash, supra.
And she took into account the
number and type of images that were on
Nash's cell phone. The four pictures . . .were not photographs of a
prepubescent minor, were not masochistic, were not torture or bondage, and were
not the totally-beyond-human-consideration photographs that are present in so
many cases involving child pornography. No evidence exists that Nash shared
these images with others. . . . These four images were the only child
pornography found on his phone or his computer. The court does not minimize the
wrongness of Nash's conduct, but notes that it is not as horrific as the
conduct that the court must frequently address in the most common kinds of
child pornography cases.
history and characteristics of Nash. His age
plays a significant role in his conduct and his sentence. Studies show that
until age 25, the part of the brain that governs judgment, decision-making and
impulse control is still in the developmental process. Male
brains specifically develop even more slowly than female brains. . . .
Furthermore, Dr. Preston, who completed
the forensic psychosexual evaluation of Nash, testified. . . . After affirming
that Nash suffered from untreated ADHD at the time of his relationship with
E.L., Preston stated. . . . he thought `it would be more likely than not [Mr.
Nash] would be below average on immaturity and the ability to do some of the
socialization that most people his age would be able to do,’ and answered affirmatively
when asked whether Nash's immaturity could have contributed to the conduct at
issue in the hearing. . . . .
U.S. v. Nash, supra.
The judge therefore took Mash’s immaturity into account in
deciding his sentence. U.S. v. Nash, supra. She also took into account that “after being
arrested in July 2012, Nash voluntarily began intense counseling and treatment.”
U.S. v. Nash, supra. She also explained that
[t]his extremely immature young man
differs from the typical child pornography defendant who generally has a cache
of hundreds of images obtained from peer-to-peer exchanges or from his own
creation; instead Nash had four separate images sent to him by his girlfriend. Because
of his young age and immaturity, the court questions whether the Bureau of
Prisons can adequately accommodate and protect Mr. Nash—another reason why
incarceration is not appropriate in this case.
U.S. v. Nash, supra
(emphasis in the original).
The judge found “no need for incarceration to protect the public
from further crimes by” Nash but also noted that she would “impose terms and
conditions that include treatment to make sure that Nash continues along the
path of recovery that he is now on, and to ensure that deterrence and
protection will not be an issue in the future.”
U.S. v. Nash, supra. She therefore took “the extraordinary but not
unprecedented step of placing Nash on probation for a term of sixty months.” U.S. v. Nash, supra.
She noted, though,
that by imposing probation,
the
court imposes much more than a slap on Nash's hand. He will forever be a
convicted felon and will forever be labeled a `sex offender’ in the state of
Alabama. Although Nash's father pleaded with the court not to brand his son as
such for the rest of his life, the court has no authority to avoid this
overly-harsh, life-long result. Although Nash is a Tier I sex offender under
federal law, requiring registration for only 15 years pursuant to 42 U.S.Code § 16915(a)(1), under the Alabama law bringing the state into compliance
with the requirements of the Adam Walsh Child Protection and Safety Act, all adult
sex offenders must register for life. Alabama Code §15–20A–3(b).
The
sex offender label that Nash's father pleaded with the court to avoid is
statutorily mandated, and the court has no power to change this unwarranted
life sentence unless Congress and/or the Alabama legislature change the law.
The court considers the harshness of this `life sentence’ in imposing probation
in this case.
U.S. v. Nash, supra (emphasis in the original).
Finally, the judge
noted that as part of
his conditions of probation, after completing
some
treatment, the court requires Nash to participate in five hours of community
service under the supervision of the probation officer. The court is convinced
Nash has many positive gifts to give back to the community, but first needs to
benefit from further treatment. In a few years, when Nash and his probation
officer, in consultation with his treatment provider, believe the time is
right, the court urges that Nash consider speaking out against sexting and the
problems that it has caused. . . . The court does not require this of Nash . .
. but desires that [he] consider this request in a few years.
U.S. v. Nash, supra.
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