Those readers who remember the wave of federal obscenity prosecutions during the late 1980s and early 1990s will find what follows surprising, and everyone will find it distressing, to say the least. Developments in federal obscenity law in general and sentencing in particular have brought about a dire situation where federal obscenity sentences will be measured in years, not months. None of the news is good.
Federal prosecutions of adult obscenity cases ended with a flop about a decade ago, when the former owners of Arrow Films were acquitted in Las Vegas of charges of sending obscene videotapes to the "Sin City." But with the installation of the Bush-Ashcroft team in Washington, the prosecution engine has been fired up again, after a detour caused by 9/11.
Telling is that the March 2004 edition of the United States Attorneys' Bulletin devotes an entire article to "Prosecuting Web-based Obscenity Cases" and some of what it says. [Volume 52, No. 2, p. 1.] The article begins with the point that "a study from one reputable source estimates that ?adult' online pornography generates approximately $1 billion per year in revenues, an amount expected to grow to between $5 and $7 billion by 2007." While those numbers likely are substantially below reality, even if correct the authors are lost on the point that they made. If, as required by Miller v. California, something cannot be obscene if it enjoys community acceptance (i.e., does not contain depictions or descriptions of sexual activities that the average person, applying contemporary standards, would find patently offensive), then how can it be obscene? Even if annual revenues are only $1 billion, as claimed, the article does not recognize the level of acceptance demonstrated by such numbers - almost four bucks for every man, woman and child in the United States. And that overlooks the annual $10 billion rentals of sexually explicit videotapes and DVDs, all of the magazines, cable television and other outlets for sexually explicit fare. The authors obviously lose sight of what they have demonstrated, establishing the "us versus them" mentality of the Obscenity Unit. They are on a religious mission that will not be deterred - just try to convince anyone that they attend the wrong church. Plain and simple, this is a cultural war.
Looking at the nuts and bolts of this is frightening, and the largest part of the problem is sentencing. The revolution started with the Comprehensive Crime Control Act of 1984, the most thorough overhaul of federal criminal law in the nation's history. A component part of this Act - surely the most dramatic - was the Sentencing Reform Act of 1984 which, after some tussling in the courts, finally became effective on November 1, 1987. Nothing has been the same since.
Before then, Congress put sentencing ranges in criminal statutes. For example, most federal obscenity statutes had sentencing ranges of zero to 5 years, along with a fine. So, if someone was convicted, the judge had absolute discretion to choose a sentence ranging from virtually nothing to 5 years, and probation always was an available alternative. Moreover, the Parole Commission was allowed to, and usually did, order a convict released after service of a fraction of his sentence, often less than a third.
The 1984 law changed all of that. It abolished parole altogether, substituting what is called "supervised release," under the terms of which a defendant is required to serve roughly 86 percent of his sentence, and be under supervision for the balance of it, or longer.
The most profound change, however, was to tie the judge's hands significantly on sentencing. The law created the United States Sentencing Commission, charged with establishing a system of sentencing guidelines applicable to each of the federal crimes. The United States Sentencing Guidelines were thereby created by the Commission, and they are updated yearly.
The Guidelines change sentencing from the good discretion of the judge to a formula-driven procedure that nets a sentencing range - for example, 18 to 24 months. From their effective date, the Guidelines dramatically increased federal criminal sentences, including in obscenity cases. Indeed, plea negotiations in the resolution of a number of obscenity cases in the late 1980s and early '90s often centered on whether the plea would be to a shipping date before or after the Guidelines' late-1987 effective date.
What follows is at least as scary as it is boring, but here is how this system works: Each offense is assigned a "base offense level." From that, there are "adjustments," such as for being a leader (up), for being a minor participant (down), for acceptance of responsibility (down) or for the amount of money involved (more money equals a larger upward adjustment). The Guidelines end with a chart called the "Sentencing Table" - a matrix with the resulting offense level number (i.e. , after adjustments) on the vertical axis and the Criminal History Category on the horizontal axis. This grid has 258 squares, from which the judge selects the box matching the final offense level and the appropriate criminal history category. In that box will be a sentencing range, 0-6 months at the bottom-left and life at the top-right, and a range between the two in the remainder of the squares.
Once the appropriate box is located, the judge is required to select a sentence within the range that is listed, unless the judge decides to "depart" from it. A departure is permitted only when the judge finds that there is some factor about the crime or the defendant that was not ever considered by the Sentencing Commission requiring a sentence outside the assigned range. Nonetheless, departures - particularly downward ones - take place with great regularity for the simple reason that even some prosecutors believe that the Guidelines are profoundly too harsh.
Now, another important thing to know is that those little boxes in the Sentencing Table are divided into "zones," lettered A, B, C and D. Zone D, which for folks with no meaningful criminal history begins at Offense Level 13 and goes up from there, is the zone where the entire sentence must be served in prison (well, 86 percent of it) - no probation or "house arrest," etc. Accordingly, the objective is to try to reduce the offense level to 12 so the defendant can at least serve some of the sentence other than in the can. Keep that 13 in mind.
Another factor is that the relationship of the Offense Level to the length of the sentence is not linear. That is to say, the punishment range for a Level 24 is substantially more than twice that for a Level 12. Rather, the minimum of the range increases something like 12 percent to 15 percent for each level. So, for example, a Level 24 minimum is 51 months, more than five times the Level 12 minimum of 10 months.
With those draconian principles in mind, you will now learn how this all has developed to the horrible situation that prevails today.
Initially, the Sentencing Commission established the Base Offense Level for obscenity crimes at Level 6, a range of 0-6 months, with probation available (all of the calculations here presume no meaningful criminal history). The upward adjustment of 5 levels for a violation involving commercial activity netted a Level 11, or 8-14 months, allowing some alternative sentencing such as home confinement. While that may seem harsh, it is dwarfed by what has happened since.
In the early '90s, while the Sentencing Commission was increasing the punishment for child pornography, it snuck in and increased the Base Offense Level for obscenity crimes to Level 10. 10 5=15, or 18-24 months. Well, there remained some chance of staying home because acceptance of responsibility is a two-level reduction, to Level 13, or 12-18 months, and a departure of one level could get the sentence to Level 12, below the Penitentiary-Only Zone.
The upward adjustment for commerciality then changed to include what is informally known as the Fraud Table, because its most common application when the Guidelines first became effective was to perhaps the favorite of all federal crimes, mail fraud. The Fraud Table adds an even number of levels, the number depending upon the amount of money involved. As to obscenity cases, it starts with more than $30,000, which adds 6 levels instead of the basic 5. $70,000 adds 8 levels to the base level of 6, $120,000 adds 10, $200,000 adds 12, $400,000 adds 14, and so on. These levels aren't chump change, either. A Base Level 10, with 14 added for over $400,000 worth of obscenity nets a Level 24, or 51-63 months!
Then came the PROTECT Act and the Ashcroft Memo. The PROTECT Act, as explained here last year (Legal Commentary, AVN, July 2003), eliminated downward departures in almost every case involving sex, including obscenity, as of its April 30, 2003, effective date. The so called "Feeney Amendment" to the PROTECT Act as originally written would have eliminated downward departures in every federal criminal case, but everyone from the American Bar Association to the National Association of Criminal Defense Lawyers to Chief Justice William H. Rehnquist revolted, so Congress paired it down to sex crimes only.
Then came the so-called "Ashcroft Memo." On July 28, 2003, Attorney General John Ashcroft sent a memo to the federal prosecutors across the country - he is in charge of all of them - ordering, in essence, a crackdown in plea bargaining. The Memo ordered prosecutors that they "must charge and pursue the most serious, readily provable offenses that are supported by the facts" and, with few exceptions, pursue the toughest sentences possible under the federal Sentencing Guidelines. It was widely believed that the Ashcroft Memo was designed to discourage bringing lesser charges to facilitate plea negotiations. So much for making a deal!
Examples of the sentences that can result from this series of developments boggle the mind. The only thing tempering all of this is that the number of items found obscene does not impact the sentence, so it is not, for example, 18-24 months for each obscene video. Courtesy of partner Larry Walters and federal sentencing expert Jerry Mooney comes the following terrifying scenario:
Base Offense Level = 10
Plus minimum five-level enhancement for commerciality = 15 (18-24 months)
Plus 2 for small-organization leader = 17 (24-30 months).
Now, that is a fairly vanilla case. A quick guilty plea could bring it down 3 levels to 14, which translates to 15-21 months in the bucket.
But now consider some wildcards. In sentencing, the court can consider all relevant conduct, so if the judge finds (by only a preponderance of the evidence and with no jury) that other tapes in the catalog are obscene, that could crank up the "Fraud Table" calculation. Also, if the judge finds that one of the tapes is not only obscene, but also involves sadomasochistic conduct, that adds another 4 levels. So, consider adding the following:
Plus 2 more for leader of more than a 5 member organization;
Plus 4 for sadomasochistic conduct;
Plus 9 (14 minus 5) for selling over $400,000 worth of products that the judge finds obscene.
Now we are in the stratosphere, an offense level of 32, netting a sentence of 121-151 months, or roughly 10-12.5 years! And that can result from a finding that only one tape is obscene, with an acquittal on another 12. Or, a quick plea gets that down to a level of 29, a mere 87-108 months; 86 percent of that nets a release date of just short of 6 years and 3 months in prison. No probation; no parole. Parenthetically, some of you technicians might have noted that the maximum statutory sentence for an obscenity violation is five years, and you are correct. If the conviction is for only one count, without an accompanying conspiracy conviction, 60 months would be the maximum. And for you prosecutors reading this, don't cite it for the proposition that any of this is correct or valid; the above reflects the DOJ's agenda, not that of the industry or its lawyers.
The Religious Right freight train, as you can see, has considerable momentum, which hopefully will be derailed in November.
(Clyde DeWitt is a partner in the Los Angeles, California-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
