Miller claimed that he was not a typical criminal defendant facing sentencing in Federal Court. He had, however, pled guilty to violating 18 U.S.C. § 2252(a)(1) by distributing pornographic images of children over the Internet.
The facts were undisputed. The only controversy involved sentencing and whether the Judge went outside the permissible guidelines established by the Federal Sentencing Commission to ensure uniform penalties for similar crimes.
The trial judge had granted a downward departure in sentencing, Miller relying, inter alia, on expert testimony that the defendant had a mental disorder justifying a diminished capacity finding.
After receiving the results of a presentence investigation, the trial judge determined that the prescribed term of incarceration under the sentencing guidelines was not appropriate. Departure from the prescribed penalties is allowable by the guidelines if it can be shown that the instant situation significantly departs from the applicable "heartland" of cases envisioned by the Commission.
The Judge in this case based departure on the defendant's diagnosed "impulse control disorder," allowing mitigation because of diminished capacity.
The Court of Appeals disagreed and articulated two problems with the sentencing Court's downward departure in this case.
Holding: The facts of the case did not justify departure by taking it out of the heartland of cases. The Court dismissed the use of the diagnosis as a mitigating factor here, finding that his profile did not differentiate him from any typical pedophile trafficker in pornography. Defining impulse control as generally understood, the Court noted, "Many offenders commit crimes because they have poor impulse control."
The failure to establish a nexus between the clinical finding and the crime also precluded departure. The defendant had an impulse disorder related to viewing pornographic images of men. The Court asserted, "The impulse was related to viewing pornography, but was not related to the means of obtaining the pornography." The Court did not however, reach the issue of whether an impulse control disorder alone, without cognitive defect, could constitute diminished capacity in the appropriate case.
| Jack King, Esq. General Counsel Beta Reporting |
Jack King, Esq. comments: The Eleventh Circuit Court of Appeals sent a strong signal that it's going to have to be an extraordinarily extraordinary child pornography trafficking case, if any, to merit downward departure. The court refused to differentiate between an "impulse control disorder" and "poor impulse control" in determining that the defendant did not meet the federal sentencing guidelines' test for diminished capacity.
If this cloud has any silver lining, it is that the appellate court reversing the departure for this defendant declined to reach the question whether an impulse control disorder alone would permit a downward departure at sentencing in an appropriate child pornography case. Interestingly, two forensic experts, a defense psychologist and a psychiatrist appointed by the court as its expert, testified that the defendant's impulse control disorder contributed to his conduct. The testimony of these two experts was unrebutted by the government and the trial judge found their testimony convincing enough to depart below the sentence dictated by the guidelines.
So what went wrong for the defendant?
It's entirely possible that with a sympathetic judge and unrebutted expert testimony, the record was simply not made as bulletproof as it might have been that the sentencing hearing went too easily.
To sentence a defendant outside the sentencing range, federal law requires that the judge find "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines[.]" The diminished capacity departure guideline, Sec. 5K2.1 3 provides that "[i]f the defendant committed a nonviolent offense while suffering from significantly reduced mental capacity a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense[.]"
In this case, the defense lawyer could have "bulletproofed" the sentencing judge's downward departure on appeal by showing that (1) the defendant's impulse control was so extremely poor that it constituted a psychiatric disorder, and (2) that because of the disorder, the defendant could not help trading child pornography over the Internet in order to obtain the paraphilic images he did need. Specifically, defense counsel needed to elicit this opinion from the defense expert and the court's expert. The experts should have been able to explain, in simple language, that the defendant had an impulse control disorder, which is distinguishable from "poor impulse control" by its severity and other characteristics. Because of this, the defendant was unable to control or conform his behavior to societal norms.
 | S. Margretta Dwyer, Ph.D. Faculty Emeritus University of Minnesota |
Dr. S. Margretta Dwyer comments: It is logical to argue that Miller's Internet trading in child pornography is behavior arising from a compulsion. The connection, however, to mental illness or impairment, did not appear to be sufficiently articulated in the Court's opinion. Anyone who has gone online to spend a few minutes surfing knows how readily those minutes become hours. Taking that much time on a computer calling up nude or semi-nude pictures can be characterized as compulsive behavior.
"The irresistible compulsion is what needs to be presented clearly to the court"
This compulsion to traffic in pornography on the net does not necessarily constitute a mental illness but it may still be characteristic of a diminished mental capacity due to a compulsion.
One problem evident in Miller, was the lack of precision in defining diagnostic terms. The Court and evaluators utilized the phrase "impulse control disorder" to characterize Miller's obsession. It is not clear, however, that the Court of Appeals understood the phrase in the diagnostic context meant by the evaluators.
Regardless, the category of impulse control disorder is generally associated with intermittent explosiveness, kleptomania, pyromania, etc.
Addiction is another term used (although not in this opinion) intermittently as a substitute for the term compulsion to describe activity similar to the defendants. This use of the term is also the focus of a controversy raging in the scientific community. Those who limit the application of the word addiction to substances such as food, alcohol or drugs argue one position. Compulsions , according to this view, apply primarily to behaviors involving objects. Others use the terms more interchangeably and define addiction more expansively so as to include compulsions.
The definition of compulsive disorder in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition(DSM-IV) is as follows:
1. It must be repetitive and the person feels driven to respond
2. The behaviors are aimed at preventing or reducing distress and are clearly excessive.
3. At some point the person recognizes the obsessions are excessive.
4. The activity is not due to the direct physiological effects of a substance (e.g. drugs, medication, alcohol)
5. The compulsion causes marked distress, is time consuming (takes more than one hour a day) or interferes with the person's normal routines or relationships.
Despite the implication that Miller was atypical of the Internet trafficker in child pornography, his profile is actually fairly typical. In my experience these individuals have been closeted homosexuals, not pedophiles, and were often employed in the military or law enforcement. These are professions where disclosure of such orientation usually means discharge or dismissal. Not having the usual outlets to find a partner, this person goes online looking to make contact and trade pictures. Pictures of children get mixed in with the desired material.
The amount of time (more than an hour per day) completes the picture for compulsive behavior. The irresistible compulsion to engage in the behavior is the critical factor that needs to be presented unambiguously to the Court.
