05 February 2011

Faith-based jurisprudence

US jurist Potter Stewart in Jacobellis v. Ohio (1964) famously stated that he couldn't define pornography but knew it when he saw it. Justice Gary Sharpe of the US Federal District Court in Albany appears to have reversed that dictum, condemning an offender on the basis of an "as-of-yet undiscovered gene".

A contact has kindly pointed me to NY Times coverage of Sharpe's decision, overturned on appeal. He had imposed a six-and-a-half-year sentence in a child pornography case, being quoted as saying "It is a gene you were born with. And it's not a gene you can get rid of" before sentencing defendant Gary Cossey (formerly of the Cambridge/Greenwich Rescue Squad) in December 2009. Sharpe commented that court did not "have a lot of faith in [the psychology] profession in the first place" because the profession is "all over the board on those issues". "I'm not gonna be surprised that it is not what happened to you as a child, ... but I'm not going to be surprised instead but that it is a gene you were born with. And it's not a gene you can get rid of." It is unclear whether Sharpe believes in a jaywalking gene, an internet addiction gene, a shoe-shopping gene (prevalent among some female law undergrads?), a white collar crime gene [PDF] or a graffiti gene. Presumably I have the footnote gene (not, as far as I'm aware, a criminal defense).

His idiosyncratic assessment - redolent of eugenicism highlighted in works such as The Criminal Brain: Understanding Biological Theories of Crime (New York: New York University Press 2008) by Nicole Rafter, Criminals and their Scientists: The History of Criminology in International Perspective (Cambridge: Cambridge University Press 2006) edited by Becker & Wetzell or Inventing the criminal: a history of German criminology, 1880-1945 (Chapel Hill: University of North Carolina Press 2000) by Wetzell - is of concern. Are people with such a gene - a gene that isn't recognised by science - freed from responsibility, or merely regarded as "unsalvageable", to adopt a phrase used by some Nazi jurists.

The United States Court of Appeals for the Second Circuit in United States v. Cossey, 09-5170 [PDF] considered Cossey's claim that -
the sentence imposed by the district court was procedurally and substantively unreasonable. He alleges that the sentence imposed by the district court was unreasonable because the court failed to properly consider the factors under 18 U.S.C. § 3553(a), disregarded mitigating facts, relied on clearly erroneous facts, depended on suppositions unsupported by the record, imposed a sentence that was greater than necessary under the totality of the circumstances, and mistakenly presumed that a within-Guidelines sentence was reasonable.
The Court indicated that "It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics". Sharpe had improperly found that Cossey would return to viewing child pornography "because of an as-of-yet undiscovered gene". The Appeals court ruled that the sentence's reliance on findings not supported in the record "seriously affects the fairness, integrity and public reputation of judicial proceedings" and ordered that Cossey be resentenced by a different judge.

Cossey had pleaded guilty to one count of possession of child pornography. The Appeals court noted that Sharpe had rejected two psychological evaluations assessing Cossey as "at a low to moderate risk to reoffend. Sharpe reportedly told Cossey that the "opinions of the psychologists and the psychiatrists as to what harm you may pose to those children in the future is virtually worthless here", apparently going on to comment -
I’m not sure there's any answer for what I see here beyond what I’m about to tell ya.
In predicting that in 50 years Cossey's conduct is likely to be found to have been caused by a gene, Sharpe stated that -
You are what you're born with. And that's the only explanation for what I see here.
In overturning Sharpe's decision the superior court commented that -
it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics. For Cossey’s challenge to survive, there must be error and it must be plain. Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted. The court's belief that Cossey was genetically incapable of controlling his urges affected the court's decision to sentence him to imprisonment, to impose a prison term that is lengthy, and to order him to submit to supervised release for life, all of which affect Cossey's substantial rights. Once plain error affecting substantial rights has been established, an appellate court may exercise its discretion to correct it if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. ... It is uncontroversial to conclude that a sentencing decision that relies on factual findings that were unsupported in the record, and thus could not possibly have been established by a preponderance of the evidence, seriously affects the fairness, integrity, and public reputation of judicial proceedings.

The record supports a finding that plain error occurred insofar as the court decided to sentence Cossey based on its conclusion that he would re-offend due to its prediction as to the state of the science of genetics "fifty years from now".