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100-Year Child Porn Sentence Called 'Cruel and Unusual'

South Dakota Supreme Court compares cases, says sentence 'lacks proportionality'

100-Year Child Porn Sentence Called 'Cruel and Unusual'

PIERRE, S.D.—A man convicted in December of 2009 of possessing 55 images of child pornography had his sentence reduced on Thursday by the South Dakota Supreme Court, which ruled that "this is the exceedingly rare case in which [defendant Troy] Bruce’s sentences were grossly disproportionate to the 'particulars of the offense and the offender.'"

According to the ruling, authored by Justice Steven L. Zinter, Troy Bruce was accused by a former girlfriend in December 2008 of possessing images of child pornography on CD and DVD, which were kept in Bruce's locked safe and footlocker. However, although a total of 30 disks were found during a police search of Bruce's apartment, he was eventually charged with possession of 55 child porn images, all of which were contained on just one DVD.

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Bruce was convicted of possessing all 55 images, and was sentenced to 10 years in prison for each of the first 10 images, the terms to be served consecutively for a total of 100 years, while the sentences for the other 45 images, for which he also received 10-year sentences, were suspended. Bruce appealed the ruling on several grounds, not the least of which was that the 100-year sentence amounted to "cruel and unusual punishment" under the Eighth Amendment to the U.S. Constitution.

"[W]e first determine whether the sentence appears grossly disproportionate," wrote Justice Zinter, quoting from the case of State v. Bonner. "To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circumstances fail to suggest gross disproportionality, our review ends. If, on the other hand, the sentence appears grossly disproportionate, we may, in addition to examining the other Solem [v. Helm] factors, conduct an intra- and inter-jurisdictional analysis to aid our comparison or remand to the circuit court to conduct such comparison before resentencing. We may also consider other relevant factors, such as the effect upon society of this type of offense."

The justices noted that South Dakota's child porn laws "criminalize[] a wide range of misconduct involving different levels of seriousness and culpability. The same statute not only prohibits possession of child pornography, but also manufacturing and distribution of those materials. Additionally, the seriousness of the prohibited sexual acts depicted ranges from lewd exhibitionism, to masturbation, intercourse, sadism, masochism, sexual bestiality, incest, sadomasochistic abuse, and sexual battery."

The justices further noted that the punishment should fit the crime—another caveat from Bonner—and that, all things considered, Bruce's offense was significantly less than those involved all of the other recent child porn cases.

"Further, we now adopt Justice Konenkamp’s recommendation 'that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material'," Justice Zinter wrote, referring to a concurrence in the case of State v. Blair.

The justices found that Bruce was a divorced father of three children, and other than a driving offense, had no  prior criminal history. It found that he had served in Operation Desert Storm, then had returned to the U.S. to pursue a career in nursing. A psychosexual evaluation of Bruce had been inconclusive.

The court also noted that Bruce's only crime had been possession of the images, and unlike several of the other recent child porn/abuse cases, the defendant had not attempted to either make or distribute the child porn, nor had he attempted to engage children in sexual activities. This was in contrast to all the other recent child offender cases in South Dakota.

"These cases demonstrate that Bruce’s maximum sentences were not reserved for the most serious combination of criminal conduct and background of the offender," the high court unanimously concluded. "We therefore conclude that this is the exceedingly rare case in which Bruce’s sentences were grossly disproportionate to the 'particulars of the offense and the offender.'"

In so holding, the court remanded Bruce's case to trial court Judge Lori S. Wilbur for reconsideration of the sentence in light of the Supreme Court's opinion.






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Mark Kernes

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