The youth and the elderly were afforded special treatment when criminally convicted. Not any longer; nowadays, depending on the nature of the crime, courts are reluctant to reduce sentences when age is the only reason for that reduction. Sadly, this era is bringing some particular cases. Criminal conducts between the youth and the elderly are commonly reported; the elderly are preying on the youth and vice versa. Are courts willing to reduce sentences for elderly who prey on children through the use of the Internet?
The Federal Sentencing Guidelines allow courts to reduce sentences when the defendant is an elderly person for whom other forms of punishment would be "equally efficient and less costly." Hence, in the case of United States v. Johnson, 242 Fed. Appx. 7, (4th Circ. 2007), the Fourth Circuit Court of Appeals held that downward sentence departure for elderly convicted of child pornography is not proper when age is the only reason for the downward. Elderly convicted of possession and use of sexually explicit material involving children may no longer receive reduced sentences; in other words, the severity of the conduct triumphs age.
Johnson was charged with three counts of transmission, receipt, and possession of children sexually explicit material. Johnson sent e-mails and instant messages to an Immigration and Customs Enforcement (ICE) agent who posed as one of Johnson''''''''s Internet friends. These communications included pictures and videos depicting children in obscene circumstances. Later, ICE obtained a search warrant and searched Johnson''''''''s home and computer equipment. Johnson''''''''s computer contained over 1,900 children sexually explicit images. The ICE officer also obtained logs of Johnson''''''''s conversations in chat rooms, which revealed that Johnson had sexually abused children over the Internet, "exposed himself to children over the Internet," "used the Internet to arrange a sexual encounter with a child," and "had sex with children in the Dominican Republic." Johnson''''''''s passport confirmed that he had recently traveled to the Dominican Republic.
The district court imposed a 144-month sentence to Johnson. The sentence was reduced in regards to Johnson''''''''s age. The following facts were also considered, Johnson successfully raised two children, maintained a steady job, provided care for his ill ex-wife, and lived a law-abiding life, but for these offenses.
The court of appeals held that the district court erred when it failed to "acknowledge and take into account Congress'''''''' policy judgment--embodied in 18 U.S.C.S. § 3553(b) (2) (A) (ii)--that child pornography crimes were grave offenses warranting significant sentences." Further, the appellate court held that the district court based its reduced sentence merely on defendant''''''''s age. "Defendant''''''''s unexceptional personal history and characteristics, including his age, did not distinguish him from other defendants convicted of these crimes, and accordingly, they did not justify a variance sentence." The appellate court did not rule out the possibility of downward departure for elderly, although it is discouraged, but in cases involving children sexually explicit material, courts must consider the policy statement required by 18 U.S.C.S. § 3553(a)(5).
The severity of Internet criminal conducts against children justifies this holding. Age should not be a mitigating factor when sentencing Internet criminals that prey on children. Society rather want the Internet illiterate grandfather than the savvy one that uses his/her (no case still seen involving elderly woman) retirement time for these purposes.
