Dissenting judge in CP case argues that "sexual predator" label for 17 yr old offender, as applied, was cruel and unusual punishment

In In re Welfare of: J.E.M., 2012 Minn. App. Unpub. LEXIS 326, a 17-year-old's conviction for possession  of child pornography was upheld; that's not the main story, though. Judge Randall, concurring specially, made an impassioned argument that under the facts of this case, which were somewhat tenuous, applying the sexual predator label to a 17-year-old (for ten years) who hadn't actually had anything to do with their production or distribution, but had merely looked at them, "begs a constitutional challenge on the grounds of 'arbitrary and capricious, and cruel and unusual punishment.'"

The facts of the case are interesting in that the basis for the conviction was on circumstantial evidence, tied with an analysis of the thumbs.db file. Thumbs.db is created when images are opened in thumbnail view, or in full. The file has essentially mini-images of the files within the directory that were opened/looked at/viewed in thumbnail. The defendant was alleged to have looked at 54 images of child pornography, by way of their inclusion in the thumbs.db. When doing forensic analysis, sometimes it is hard or impossible to tell whether someone viewed a file in a large enough form to prove that they knew it was child pornography. Thumbs.db is created if the images are icon size or full gallery view.

Tied with the thumbs.db was the time of access, which was nailed down to when the defendant had possessed the computer and logged in with a password. The court essentially deferred to the determination of the jury with respect to fact-finding and appeared to give deference to the agent who had testified regarding whether or not the defendant had actually viewed the files.

In my opinion, a conviction of a 17-year-old under this factual scenario may be somewhat harsh - given the mandatory 10-year "sexual predator" label and the lack of concrete evidence of how the defendant viewed the images, or if he did so repeatedly (or whether they just loaded as part of a page he did not view in totality). But, I am of the opinion that the jury was in the best position to make this determination and to assess the veracity of the evidence, so upholding the conviction was proper.

Judge Randall, in his concurrence, first describes the mandatory label as something that should not be slapped on without a determination of context. He then goes on to lament the effect such a label would have on an individual over the course of that 10-year period - that it wouldn't just be for those ten years, but would essentially be a life sentence, and that it would prevent the individual from obtaining a large swath of occupations. He states, colloquially, that:

A man or woman with the label "predatory offender" applies for an advertised job at a loading dock and passes the basic fitness and aptitude tests and now there are 10 qualified applicants for five openings. What does the foreman/boss say behind closed doors, "for  ___ sake, dump that assaulter, pedophile, sexual deviant, or whatever the hell he is!"

He then makes what I believe to be a strange argument - that the fact that the Internet is filled with porn is reason to excuse the defendant's behavior to some degree; that it was just part of being on the Internet. He opines that "[t]he figures vary, but approximately 60% to 80% of worldwide computer Internet is pornography. If you cannot find it on your computer, you do not even know how to read your email."

Judge Randall then begs the question of why there is what I would call an "offensiveness gap" between pictures of 17-year-olds vs. 18-year-olds:

Minors are supposed to make it so terribly more offensive?! If you have scantily clad or naked 17-year-olds "doing time" in the "Caymans?" why is that so much more offensive than naked or partially clad 18-year-olds "doing time" in the "Caymans." 

I understand the argument, but I think this distinction is an inevitable part of drawing a line at what age pictures of individuals constitute child pornography. Also, it is nearly impossible (without knowing about the individual in a picture beforehand) to determine what the exact age of a person is in a pornographic image.  When you search (as a forensic investigator) a computer for CP, you are operating under the "I'll know it when I see it" credo - which typically pushes that age at which you would call something child pornography below even 17. But regardless, this argument is fruitless here because the pictures the defendant was alleged to have looked at were of a 9-year old girl. 

Judge Randall concludes by reiterating that the Minn. statute that requires the mandatory predator label for life (essentially) without a judicial assessment of the context of the situation "is an unconstitutional denial of due process, and is so arbitrary and so capricious and so damaging that it is cruel and inhumane punishment as applied in this case."

I believe this to be a constitutional overreach by the judge given the substantial interest the government has in preventing child pornography, as well as protecting the community from individuals who have exhibited behavior consistent with that equated with sexual offenders. Additionally, its hard to see where a case like this fits within juvenile 8th Amendment cases such as Roper v. Simmons, 543 U.S. 551 (2005) - but more importantly, cases where juveniles have been tried as adults. However, Judge Randall does gain a modicum of support from the Ohio Supreme Court - in In Re C.P., 2012 Ohio 446 (2012), the court held that a juvenile, not tried as an adult, was subject to cruel and unusual punishment when he was required to register as a sex offender for life. But there, it was key that he was tried within the juvenile system. This case can clearly be distinguished.

I am sympathetic to the argument that kids do make mistakes and this is quite a harsh punishment. I just don't think sympathy is enough.