'Marginal deterrence' discussed in Seventh Circuit.

• Date: 04 June 2007
• Author: Ziemer, David

Byline: David Ziemer

A May 29 decision from the Seventh Circuit clarifies the concept of "marginal deterrence" in sentencing. In doing so, the court affirmed a maximum, 360-month sentence for producing child pornography. James Beier pleaded guilty in Wisconsin federal court to producing child pornography. He had produced a number of videotapes and DVDs depicting nude prepubescent boys. Some showed him fondling the boys' genitals. He had also had oral sex with some of the boys, though off-camera. Judge John C. Shabaz sentenced him to 360 months, which is both the statutory maximum and the bottom of the applicable guideline range. Beier appealed, but the Seventh Circuit affirmed, in a decision by Judge Richard A. Posner. Beier raised several arguments why the sentence was unreasonable, but the court rejected them all. First, he argued that he had been sexually abused himself as a child, and asserted that such a history makes a person less able to avoid becoming a child molester. Turning the argument around, the court suggested that such a factor may actually warrant a longer sentence, rather than a shorter one. The court wrote, "The more difficult it is for a person to resist a desire for sexual contact with children, the more likely he is to recidivate, and this is an argument for a longer prison sentence." The court also noted that...