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Eugenics based sentence, overturned


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http://www.nytimes.com/2011/01/29/nyregion/29ruling.html?_r=1&emc=tnt&tntemail1=y

Even though this was overturned, it verges on the terrifying.

The sentencing judge in a possession of child pornography case based his decision in his belief in an as yet undiscovered gene, which, I guess, forces people to view child porn, telling the defendent, "You are what you're born with. And that's the only explanation for what I see here.".

While I'm no big fan of either child porn or its viewers, sentencing done on the basis of imaginary science is not good either.

The most disturbing thing, thhough, to me, was that the appeals' court's decision seemed to rest, at least in part, on the complete wrongness of the judge's ideas about genetics. They don't seem to have considered the appropriate role of actual genetics in a sentencing decision. Obviously, we're pretty far away from that becoming an issue, realistically, but we are not a smart country, and we're especially not smart about science. So I'm not sure we're so far away from information about what might eventually turn out to be genetic factors in whatever, being misused by either prosecutors or judges. Which of course has me wondering, what happens if a sentence is based on wild speculation, that is in fact based in some semblance of reality?

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Ugh. I've seen some pretty whacked ot decisions from judges over the years, but this one is especially appalling. Sorry to see that the appeals court weighed in at all on the issue of genetics, present or future. The original judge simply went way over the line in his reasoning and the appellate court should have restricted their commentary, rather than trying to portend the future of genetic research.

And if the gene(s) for viewing 'Go Cry Emo Kid' is ever identified I could be hosed.....

Yet another example of Due Process becoming Doo Doo Process.

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While I'm no big fan of either child porn or its viewers, sentencing done on the basis of imaginary science is not good either.

I'm pretty sure the appellate court addressed this concern:

It is undisputed 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.... 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.

After reading the appellate court's opinion myself, I don't see any evidence that they weighed in on whether or not it's proper for genetics to be a consideration in sentencing, but rather on whether or not it's appropriate for a judge to use evidence that isn't supported by the record when sentencing, i.e. to make shit up. A second issue they tackled is whether or not it was appropriate for the district judge to disregard two reports, one from a private psychologist and one from a court-ordered psychiatrist, based on his own personal opinion about their professions. In other words, the problem here was the district judge bringing his prejudices to the bench. In that light, I feel that this was the appropriate stance for an appellate court to take. It would be improper for the circuit court to reframe the issue, especially as broadly as you want it to.

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I didn't say I wanted them to reframe the issue that broadly. I said the case caused me to consider those issues, in a more concrete way than I had done previously, and the likelihood of their becoming legally relevant in future.

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