By Michael Mitchell

Does Increased Sentencing for Crime Against “Vulnerable Victims” Violate the Eighth Amendment’s Prohibition of Cruel and Unusual Punishment?

Today, in United States v. Dowell, the Fourth Circuit considered whether the district court’s increased sentence for the Defendant under the “vulnerable victim” standard was appropriate when an upward adjustment was already made based on his victim’s young age.

Child Pornography Conviction Results in “Upward Adjustment” Sentencing

Defendant John Dowell pled guilty to twelve counts of production of child pornography and one count of transportation of child pornography after he recorded himself in various stages of sexual contact with two girls under five.  Dowell stored more than 70,000 pornographic images and videos on his computer, three-fourths of which involved children, and posted many of them to the Internet through various websites.

After a lengthy sentencing hearing, the district court sentenced Dowell to 960 months in prison.  The court heard expert testimony from a psychologist, who testified that Dowell was a pedophile, “sexually attracted to females, nonexclusive type” (adults and children).  Although the psychologist testified that Dowell is unlikely to be a repeat offender, he acknowledged that pedophilia is a chronic condition “that is unlikely to go away as [he] ages.

Based on Dowell’s Pre-Sentence Report, the district court allowed enhanced sentencing for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor” and “engag[ing] in a pattern of activity involving prohibited sexual conduct.”  The court relied on “the well established principle that double counting is authorized” unless specifically prohibited in applying the harsher sentencing.  Dowell has challenged the district court’s use of this “vulnerable victim” enhancement.

Eighth Amendment Challenge over Proportionality of Sentencing

 The court considered the constitutionality of the Defendant’s enhanced sentencing in light of the Eighth Amendment’s prohibition of cruel and unusual punishment.  Specifically, the court reviewed whether the sentencing was proportional under the Eighth Amendment.  Defendants bringing a constitutional claim must assert either an “applied-as” challenge, arguing that the sentence is disproportionate for the particular case, or a “categorical” challenge, asserting that “an entire class of sentences is disproportionate.”  Dowell has only raised an applied-as challenge to his sentence.

Defendant Fails to Substantiate As-Applied Constitutional Challenge

In a published opinion under de novo review, the Fourth Circuit relied on the “narrow proportionality principle,” adopted by the Supreme Court for as-applied challenges to the Eighth Amendment.   Strict proportionality is not required between the crime and the sentence.  Only “grossly disproportionate” sentences are forbidden by the Eighth Amendment, which is evaluated using a two-part test.  First, the court must determine “that a ‘threshold comparison’ of the gravity of the offense and the severity of the sentence “leads to an inference of gross proportionality.”  If this high burden is met, the court will then compare the challenger’s sentence with other offenses in that jurisdiction and sentences of similar offenses in other jurisdictions to establish that it constitutes cruel and unusual punishment.

Recently, the Fourth Circuit rejected a similar Eighth Amendment challenge of a lengthy sentence stemming from a child pornography conviction.  In United States v. Cobler, 748 F.3d 570, the court found that the defendant’s crime was “sufficiently egregious” to justify heightened sentencing based on the large quantity of child pornography and the risk that he posed to his victim.  Here, the court draws parallels to this 2008 case and rejects Dowell’s claims that the crime was nonviolent.  As a result, the court found that the Defendant’s sentence was not cruel and unusual punishment under the Eighth Amendment.

Fourth Circuit Affirms Harsher Sentencing In Spite of Harmless Error

The Fourth Circuit affirmed the Defendant’s 960-month sentence, finding that his sentence was proportional under the Eighth Amendment’s prohibition of cruel and unusual punishment and rejecting his claim that “double counting” is not permitted by the Sentencing Guidelines as a harmless error.