MEMORANDUM OPINION & RE-SENTENCING ORDER
In a few months, Brandon M. Inman will complete his term of incarceration for possessing child pornography. He will then begin a period of supervision. Initially, Mr. Inman was sentenced to permanent supervision with standard sex offender conditions recommended by the United States Probation Office for the Eastern District of Kentucky. This is consistent with the practice in these cases as approved by all of the judges in this district. Neither the United States nor Mr. Inman's counsel objected to the sentence. Nevertheless, on appeal the Sixth Circuit has vacated the supervision portion of his sentence, seeking additional rationale and expressing its own view on the appropriate length of supervision and conditions. After additional examination, and for the reasons set forth below, Mr. Inman will be sentenced to a modified lifetime term of supervised release with conditions as defined.
Mr. Inman was indicted in 2008 for violating 18 U.S.C. § 2252(a)(4)(B), possessing media-sixty images and one video-containing visual depictions of minors involved in sexually explicit conduct. [R. 1.] A number of pretrial issues followed, including inquiry into Mr. Inman's competency, specifically his ability to understand the nature of the proceedings and aid in his defense. Ultimately, the Magistrate Judge recommended that he was competent, based in large part on the results of an examination conducted by Dr. Betsy Campbell at the Federal Medical Center in Lexington, Kentucky. [R. 28, 29.] This Court adopted that recommendation.
[R. 30.] Subsequently, a motion for rearraignment was filed, [R. 32] a plea of guilty was accepted, [R. 36] and a Presentence Investigation Report was ordered to be completed.
Prior to the sentencing proceeding, Mr. Inman's counsel filed a motion for a downward departure. He argued for a below-Guidelines sentence for several reasons: Mr. Inman's zero criminal history points, his history of feeling lonely and depressed, that he possessed relatively few images, and his cooperation in the investigation. [R. 52.] A below-Guidelines term of imprisonment and a term of supervised release both extending beyond the guideline range and including the "intensive" conditions accompanying release was sought by counsel. [R. 52-1 at 9; see also R. 68 at 18-20 (transcript of Inman's counsel's sentencing request).] The United States opposed that motion, suggesting that the bottom of the sentencing guideline range (fifty-seven months), in addition to a ten-year period of supervised release, would satisfy the purposes of 18 U.S.C. § 3553(a). [R. 54.] The probation officer assigned to this case opined confidentially on the appropriate sentence as permitted by Federal Rule of Criminal Procedure 32(e)(3).
Ultimately, the Court concurred with the United States' recommendation that a term of imprisonment of fifty-seven months was sufficient but not greater than necessary. [R. 68 at 43.] The Court exceeded both parties' suggested time of supervised release and opted for a term of life supervision, conditioned upon compliance with numerous requirements. [Id. at 43-48; see also R. 58.] This term of supervision is in accord with the policy statement of U.S.S.G. § 5D1.2(b), which recommends the imposition of the statutory maximum term of supervision.
Significantly, neither the United States nor Mr. Inman objected to the sentence, the lifetime term of supervised release, or the specific conditions that were imposed. [R. 68 at 49.]
Many of the supervised release conditions that were imposed are customary and imposed on all parties placed on supervised release. [R. 58 at 3.] The majority of the remaining conditions are standard conditions imposed on defendants convicted of sex offenses in the Eastern District of Kentucky. As explained below, these conditions are the product of the United States Probation Office's experience and research, and they have been adopted by all district court judges in this district.
A short time after the sentence was imposed, Mr. Inman appealed. [R. 59.] The Court of Appeals for the Sixth Circuit vacated seven discrete parts of the sentence because insufficient rationale was offered. [R. 72, Ex. 1.] The Court deems this a limited remand as the "chain of intended events [was] articulated with particularity," and the scope of the remand is "unmistakable." United States v. Campbell, 168 F.3d 263, 268 (6th Cir. 1999).
On remand, this Court is instructed to re-examine the imposition of a lifetime term of supervised release. This is consistent with the Sixth Circuit's growing skepticism regarding the efficacy of lifetime supervision in this context. See, e.g., United States v. Maxwell, 483 F. App'x 233 (6th Cir. June 13, 2012); United States v. Thompson, 2012 WL 6621353 (6th Cir. Dec. 20, 2012). But see United States v. Lantz, 443 F. App'x 135, 138 (6th Cir. Nov. 22, 2011) (upholding a sentence of lifetime supervision for a defender with an extensive history of sex offense convictions).
In addition, six supervised release conditions require reconsideration: (1) the mandatory drug testing requirement; (2) the mandate to provide information about prescription medications; (3) the requirement that Probation have access to personal financial information; (4) the ban on consuming alcohol; (5) the prohibition on possessing or using technology with the capability of creating videos or pictures; and (6) the bar on using a post office box or storage facility . [R. 72, Ex. 1 at 7.]
The imposition of Mr. Inman's new sentence involved three hearings. On August 29, 2012, the Court re-appointed Mr. Inman's original counsel and outlined the process of resentencing. [R. 78.] On September 26, 2012, the United States and Mr. Inman's counsel advocated for the sentence each party believed was appropriate. [R. 80.] Mr. Inman was also given the opportunity to allocute. On May 9, 2013, the sentence was finally imposed along with a statement of reasons and the parties were asked if they had any objections to that sentence. Neither party objected. Now, the Court enters this order setting forth its findings. This process is akin to that used in United States v. Cunningham, 680 F. Supp. 2d 844 (N.D. Ohio 2010) and endorsed by the Sixth Circuit. United States v. Cunningham,669 F.3d 723, 727-30 (6th Cir. 2012).
"The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty." Johnson v. United States, 529 U.S. 694, 708-09 (2000). Supervised release is intended to be rehabilitative, especially for defendants who are imprisoned for relatively short periods of time, and is not envisioned as punishment. United States v. Lewis, 498 F.3d 393, 397 (6th Cir. 2007) (citing Johnson, 529 U.S. at 709). Yet, the focus of supervised release must not be exclusively on the defendant's well-being as protecting the public is an equally important value. [R. 72-1 at 2 (quoting United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007)).] 18 U.S.C. § 3583 establishes the process and the parameters for determining the appropriate length of the period of supervised release and the conditions with which a defendant must comply. Because Mr. Inman was convicted of violating a provision of 18 U.S.C. § 2252, he has a mandatory term of not less than five years and not more than life. See § 3583(k). The conditions he must follow during his time of supervised release, meanwhile, are governed by § 3583(d), which affords courts broad discretion.*fn1
In some respects, concluding that an individual must endure the burden of lifetime supervision is the same as concluding that the nature of the crime committed does not lend itself to individual rehabilitation. Rarely is federal supervised release imposed for more than a few years. But in this context, the policymakers require a significant minimum period of supervision-five years-and evince a preference for permanent supervision. There must be something about this category of crime that suggests to Congress that ongoing remedial intervention and monitoring is needed.
As a judge, it is tempting to reconsider this conclusion. After all, the literature on this topic is far from conclusive. See United States v. C.R., 792 F. Supp. 2d 343, 375-77 (E.D.N.Y. 2011) (discussing disputed research pertaining to relationship between viewing child pornography and committing sexual abuse); United States v. Cunningham, 669 F.3d 723, 731 (6th Cir. 2012) (same); United States v. Quinn, No. 12-2260, 2012 WL 4962433, at *1 (7th Cir. Oct. 18, 2012) (citing Richard Wollert, The Implications of Recidivism Research and Clinical Experience For Assessing and Treating Federal Child Pornography Offenders: Written Testimony Presented to the U.S. Sentencing Commission (Feb. 15, 2012) [hereinafter Wollert, Treating Federal Child Pornography Offenders]*fn2 ; United States v. Johnson, 588 F. Supp. 2d 997, (S.D. Iowa 2008) (citing Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (2008) favorably while criticizing Michael L. Bourke & Andres E. Hernandez, The 'Butner Study' Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders,24 J. Fam. Violence 183-91 (2008)). But, it must be remembered that "defining crimes and fixing penalties are legislative functions." United States v. McNerny, 636 F.3d 772, 778 (6th Cir. 2011) (alteration in original) (quoting United States v. Evans, 333 U.S. 483, 486 (1948)).
Congress has delegated much of its responsibility for establishing penalties to the United States Sentencing Commission, through which the Sentencing Guidelines are promulgated. Although it cannot be stressed enough that Sentencing Guidelines are not mandatory, they are important guideposts that must be calculated properly and considered during every sentencing decision. See, e.g., United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007). The Guidelines further Congress's "preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences when necessary." United States v. Booker, 543 U.S. 220, 264-65 (2005).
With regard to child pornography offenses, Congress has given the Sentencing Commission's process less deference. See generally McNerny, 636 F.3d at 775-76, 778. This has the disadvantage of bypassing the Sentencing Commission's use of empirical data for calculating the Guidelines. Id. at 775-76. Congress, in superseding that process, has resorted to simply creating new offenses and increasing penalties as it sees fit. Id. In spite of all that, the penalties that exist for child pornography were legislatively created and reflect the electorate's perspective on the seriousness of this offense.
Ultimately, it is the judiciary's responsibility to impose consequences in accordance with the legislature's decisions. Sex offenders come before a federal judge with a legislatively imposed presumption that a significant period of supervision is required and a permanent period of supervision is preferred. This leaves a judge with the difficult task of answering this complicated question: What is it about a particular defendant that requires long-term or permanent supervision? The statutory framework provides some guidance, but this inquiry necessarily rests on the complex and nuanced intersection of psychology, criminology, and predictions about the future. The judiciary is simply not designed to be particularly good at this task. Consequently, to navigate this demanding path, judges must rely on resources trained for such a journey. These include ...