Appeals Court Overturns Sentence Based on "Porn Gene"

Posted by Pete Shanks on February 2nd, 2011

prison bars

When we ridicule "genes of the week" we are usually pointing fingers at the press, or at scientists trying to exploit the press for publicity. We often play it for laughs, though we are well aware that genetic hype can have important and very disturbing consequences, some of which are not immediately visible.

But a case just came to light that might have cost someone two extra years or more in prison.

On December 3rd, 2009, U.S. District Judge Gary Sharpe sentenced Gary Cossey to 6-1/2 years, plus a life term of supervision thereafter, for possession of child pornography. This was a higher than expected sentence, albeit within the broad legal guidelines.

Judge Sharpe chose to reject two different psychological evaluations that found Cossey to be at a low to moderate risk of re-offending, calling their opinions "virtually worthless" because the profession is "all over the board on those issues." Instead, according to the written judgment of the Appeals Court, Sharpe needed "to share a view that's a little different than what you're hearing from your psychiatrists." In particular:

[Judge Sharpe] predicted that some fifty years from now Cossey's offense conduct would likely be discovered to be caused by "a gene you were born with. And it's not a gene you can get rid of."

Sharpe noted that the defendant was in therapy, but was not impressed, saying that:

"[It] can only lead, in my view, to a sincere effort on your part to control, but you can't get rid of it. You are what you're born with. And that's the only explanation for what I see here."

This is eerily reminiscent of the Violence Initiative of the early 1990s, and other biological explanations of crime (as described, for instance, in The Criminal Brain by Nicole Rafter). And, of course, of the eugenic approach that designates certain people, or types of people, as lost causes that society would be better off without.

Fortunately for Cossey, he had made a plea agreement that gave him leave to appeal his sentence if it were greater than four years and nine months. The appeals court accepted that the possibility of re-offending was a legitimate consideration but completely rejected Judge Sharpe's theory:

Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted.

(The use of the term "scientific" is overly polite.)

The case has been remanded to a different judge for sentencing. Judge Sharpe has so far refrained from comment, but we are left with a disquieting question: Was he merely more honest than many of his peers? Is this kind of inevitablist, genist thinking common among the judiciary? Or, indeed, among politicians and other opinion leaders?

Previously on Biopolitical Times:

Posted in DNA Forensics, Eugenics, Human Rights, Personal genomics, Pete Shanks's Blog Posts, Sequencing & Genomics, US Federal


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