United States v. D.W.

198 F.Supp.3d 18

UNITED STATES of America,

v.D.W., Defendant.

13-CR-173

United States District Court, E.D. New York.

Signed July 28, 2016

Robert L. Capers, United States Attorney, E.D.N.Y., By: Erik David Paulsen, U.S. Attorney's Office, E.D.N.Y., 271 Cadman Plaza East, Brooklyn, NY 11201, for United States

Deirdre Dionysia Von Dornum, Douglas G. Morris, Samuel Jacobson, Federal Defenders of New York, One Pierrepont Plaza, 16th floor, Brooklyn, NY 11201, for Defendant

Hayley Gorenberg, Lambda Legal Defense & Education, Fund, Inc., 120 Wall Street, 19th Floor, New York, NY 10005, for Amicus Lambda Legal Defense & Education Fund, Inc.; National Center for Lesbian Rights; National Center for Transgender Equality; and the Sylvia Rivera Law Project

Brandon W Duke, Winston & Strawn, 1111 Louisiana Street, 25th Floor, Houston, TX 77002, Benjamin Sokoly, Jeffrey Amato, Jonathan McCoy, Sean Anderson, Winston & Strawn LLP, 200 Park Avenue, NY, NY 10002, for Amicus Washington Lawyers' Committee for Civil Rights and Urban Affairs

JUDGMENT, MEMORANDUM AND ORDER ON SENTENCING

Jack B. Weinstein, Senior United States District Judge

JACK B. WEINSTEIN, Senior United States District Judge:

I. Introduction ...23

II. Factual Background ...24

A. Abuse and Neglect by Biological Parents ...24

B. Abuse and Trauma in First Foster Family ...24

C. Abuse and Trauma in Second Foster Family ...25

D. Adoption ...26

E. Sexual History and Addiction to Child Pornography ...27

F. State Incarceration ...27

1. Repeated Rape ...27

2. Mental Health and Suicide Attempts ...28

G. Release from State Custody ...28

III. Instant Offenses ...30

A. FBI Investigation

1. Possession of Child Pornography ...30

2. Fictitious Bus Company ...31

B. Arrest ...32

C. Sexual Exploitation of a Child ...32

D. Plea Negotiations and Trial Preparation ...33

E. Guilty Plea ...33

F. Metropolitan Detention Center ("MDC") Incarceration ...33

1. Risk of Suicide ...33

2. Disciplinary Issues ...35

3. Lack of Family Support ...36

G. Sentencing ...37

1. Offense Level, Category, and Sentencing Guidelines Range ...37

2. Victim Impact ...37

3. Medical and Psychological Evaluations ...38

a) Dr. Richard B. Krueger, M.D. ...38

b) Dr. Robert Prentky, Ph.D. ...42

c) Dr. Barry Rosenfeld, Ph.D. ...44

4. Sentencing Hearing of June 2015 ...45

5. Defendant's July 2015 Letter to Court ...46

H. Evidentiary Hearings ...47

1. Guilty Plea ...48

2. Witness Testimony ...50

a) Medical Experts ...50

b) Bureau of Prisons ("BOP") Experts ...51

c) Additional Witnesses ...53

I. Amicus Curiae Briefs ...54

IV. Sentencing Considerations ...55

A. Risk of Harm to Defendant While in BOP Custody ...56

1. Designation to Medium or High Security Facility ...56

2. Prison Rape Elimination Act ("PREA") ...60

a) BOP PREA Program Statement ...60

b) BOP PREA Intake Screening ...62

3. Limitations of PREA ...64

4. Characteristics Rendering Defendant Highly Vulnerable ...66

a) Previous Sexual Victimization ...69

b) Sexual Orientation ...70

c) Mental Illness ...71

d) Sex Offender Status ...73

B. BOP's Use of Solitary Confinement to Protect and Punish ...74

1. Special Housing Units ("SHUs") ...76

a) Disciplinary Segregation ...76

b) Administrative Detention ...76

c) Protective Custody ...78

d) BOP Tracking of Inmates in SHU ...85

2. Lack of Alternatives to Protective Custody ...87

a) Transfer to Different Housing Unit ...89

b) Transfer to Different Facility ...90

3. Effects of Solitary Confinement ...90

a) SHU Syndrome ...90

b) Effects on Vulnerable Inmates ...93

c) Post-SHU Syndrome ...93

d) Destructive Effects of Isolation on Defendant ...94

C. FMC Devens; BOP Program for Sex Offenders ...94

1. Sex Offender Management Program ("SOMP") ...95

2. Residential Sex Offender Treatment Program ("SOTP-R") ...96

3. PREA Compliance ...98

D. Risk of Harm Posed by Defendant to the Public ...99

1. Pedophilia and Pornography Addiction ...99

2. Risk Assessment ...100

3. Significance of Fantasies ...103

a) Letter Concerning Sexual Fantasy with Young Boy ...104

b) Fictitious Bus Company Applications ...105

4. Amenability to Treatment ...106

a) Defendant's Child Pornography Addiction ...106

b) Defendant's Empathy ...108

5. Effects of Incarceration on Defendant's Recidivism ...111

a) Empirical Research ...111

b) Expert Testimony ...113

6. Proposed Treatment Plan ...117

a) Individual and Group Therapy ...117

b) Outside Controls ...119

c) Educational Training ...119

d) Outside Support ...119

E. Community Reentry Plan ...119

V. Law .........125

A. Statutory Mandatory Minimum ...125

B. Sentencing Commission Guidelines ...125

C. Restitution ...126

D. Eighth Amendment ...127

1. Proportionality Analysis Applicable to Sentencing ...128

a) Length of Sentence ...130b) Mandatory Minimum Sentences ...130

2. Impact of Conditions of Incarceration on Sentence Proportionality ...133

VI. Application of Law to Facts ...137

A. Fifteen Year Sentence If Properly Carried Out Not Unconstitutional ...138

1. Gravity of Offense ...139

2. Severity of Sentence ...140

3. MDC and Pre-Release Halfway House ...143

B. Guidelines Excessive ...144

VII. Conclusion ...146

A. Sentencing Recommendations to BOP ...146

B. Unconstitutionality Should Court's Recommendations Not Be Followed ...147

C. Sentence Imposed ...148

I. Introduction

Defendant is guilty of serious crimes: possession of child pornography and sexual exploitation of a child. A fifteen year minimum term of incarceration is mandated by statute.

The long term required, if served under the routine harsh and dangerous prison conditions D.W. faces, would be destructive to him, dangerous to society, and unconstitutional.

Under prevailing prison conditions, such a long term of incarceration would deny D.W.—with his severe mental problems—any meaningful opportunity to obtain needed medical treatment. It would likely expose him—gay, and previously repeatedly raped—to physical and sexual abuse. It would greatly increase the risk of suicide, given his repeated attempts at taking his own life. To protect him, it would probably include long, debilitating protective solitary confinement. Predictably, D.W. would be released from prison—if he survived—in more danger of recidivism than if he had served a shorter sentence, thus presenting a greater danger to society. Appropriately carried out, however, a sentence of fifteen years can be structured to avoid cruel prison conditions for this defendant, thereby avoiding unconstitutionality.

The trial judge cannot close his or her eyes to the conditions a particular defendant being sentenced will necessarily experience in prison. When a long term is fixed by statute, the prison environment must be considered by the sentencing judge in estimating total harm and benefits to prisoner and society—a utilitarian as well as a compassionate exercise.

Ours is a Madisonian government of independent departments—legislative, executive and judicial. To effectively carry out the people's business these divisions of government must sometimes assist each other. Respectful cooperation is often required. The administration of criminal justice is an example: investigators, prosecutors, defense counsel, courts, prisons, and social assistance agencies must work together to protect the public and help the adjudicated criminal to a life free of crime. So, while a judge, in general, may lack the power on sentencing to direct the operation of federal prisons in an individual case—a responsibility of the Department of Justice—he or she must properly and reasonably recommend (assuming the recommendation will be given effect) how a person with special vulnerabilities should be treated in prison.

Sentencing is not merely an announcement of judgment. It is a prediction and assumption of how the sentence will be carried out.

In D.W.'s case the judge must include in his sentence a strong recommendation on how the federal prison system must treat him. The judge assumes that the Department of Justice will respect these specific recommendations.

Only defendant's initials are used in this memorandum because, were his full name published, the likelihood of his being attacked in prison would increase.

II. Factual Background

A. Abuse and Neglect by Biological Parents

Defendant is a twenty-seven year old male born in Brooklyn, New York. See Presentence Investigation Report ("PSR") at ¶ 81.

He has lost contact with his biological parents. He was separated from them when he was five years old. They lost custody as a result of their drug use and neglect. Id. In February 1996, the Kings County Family Court terminated their parental rights. See Def.'s Post-Hr'g Mem. of Points and Authorities, Feb. 23, 2016, ECF No. 130 ("Def.'s Post-Hr'g Mem."), Ex. 13 (Forestdale Adoption Homestudy) at 4. He has not seen them since. PSR at ¶ 81.

As accurately stated by defense counsel:

The first four years of [D.W.'s] life are a black hole. What we do know is that he and his siblings were removed from his parents' custody due to his mother's crack addiction, that he had huge amounts of lead in his system , that he likely suffered from fetal alcohol [and drug] syndrome , and that his intellectual functioning was severely impaired .

Def.'s Sentencing Mem., June 8, 2015, ECF No. 69 ("Def.'s Sentencing Mem.") at 4 (emphasis added).

B. Abuse and Trauma in First Foster Family

At age four, defendant was placed in his first foster care home. A psychological assessment conducted when he was five revealed diminished mental capacity and other symptoms identified in children exposed to drugs while in utero. PSR at ¶ 81. Lead exposure as a child increased adverse effects on defendant's mentation. Cf. G.M.M. ex rel. Hernandez – Adams v. Kimpson , 116 F.Supp.3d 126, 129–130 (E.D.N.Y.2015) (describing the harm caused to young children by lead and the disproportionate exposure of low-income and minority families). Symptoms included "tiny stature, difficulties with language acquisition and comprehension of concepts, articulation problems, etc." Def.'s Post-Hr'g Mem., Ex. 12 (Joan Healy, Ph.D., Psychological Assessment Report for [D.W.], Jan. 8, 1994) at 5.

The psychologist who performed the...