# United States v. D.W.

> District Court, E.D. New York · July 28, 2016 · 198 F. Supp. 3d 18

URL: https://www.frixlaw.com/law-library/cases/7239213

## Case

- **Full name:** United States v. D.W.
- **Court:** District Court, E.D. New York
- **Decided:** July 28, 2016
- **Citations:** 198 F. Supp. 3d 18; 2016 WL 4053173
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Weinstein
- **Judges:** Weinstein
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7239213

## How later opinions describe it (automated extraction)

- finding that the defendant's "high risk of being abused while incarcerated ... would compound [his] already serious mental health problems, making readjustment upon his eventual release from custody less likely"

## Opinion text

JUDGMENT, MEMORANDUM AND ORDER ON SENTENCING
Jack B. Weinstein, Senior United States District Judge
JACK B. WEINSTEIN, Senior United States District Judge:
I. Introduction.. .23
II. Factual Background.. .24
A. Abuse and Neglect by Biological Parents.. .24
B. Abuse and Trauma in First Foster Family.. .24
C. Abuse and Trauma in Second Foster Family.. .25
D. Adoption.. .26
E. Sexual History and Addiction to Child Pornography., .27
F. State Incarceration.. .27
1. Repeated Rape... 27
2. Mental Health and Suicide Attempts. . .28
G. Release from State Custody.. .28
III. Instant Offenses... 30
A. FBI Investigation
1. Possession of Child Pornography. . .30
2. Fictitious Bus Company.. ,31
B. Arrest.. .32
C. Sexual Exploitation of a Child... 32
D. Plea Negotiations and Trial Preparation ... 33
E. Guilty Plea.. .33
F. Metropolitan Detention Center (“MDC”) Incarceration.. .33
1. Risk of Suicide... 33
2. Disciplinary Issues... 35
3. Lack of Family Support.. .36
G. Sentencing.. .37
1. Offense Level, Category, and Sentencing Guidelines Range... 37
2. Victim Impact.. .37
3. Medical and Psychological Evaluations .,. 38
a) Dr. Richard B. Krueger, M.D.... 38
b) Dr. Robert Prentky, Ph.D.... 42
c) Dr. Barry Rosenfeld, Ph.D... .44
4. Sentencing Hearing of June 2015...45
5. Defendant’s July 2015 Letter to Court.. .46
H. Evidentiary Hearings... 47
I. Guilty Plea.. .48
2. Witness Testimony.. .50
a) Medical Experts... 50
b) Bureau of Prisons (“BOP”) Experts ... 51
c) Additional Witnesses... 53
I. Amicus Curiae Briefs... 54
IV. Sentencing Considerations... 55
*22 A. Risk of Harm to Defendant While in BOP Custody.. .56
1. Designation to Medium or High Security Facility.. .56
2. Prison Rape Elimination Act (“PREA”). - .60
a) BOP PREA Program Statement ... 60
b) BOP PREA Intake Screening. . .62
3. Limitations of PREA.. .64
4. Characteristics Rendering Defendant Highly Vulnerable... 66
a) Previous Sexual Victimization ... 69
b) Sexual Orientation... 70
c) Mental Illness... 71
d) Sex Offender Status... 73
B. BOP’s Use of Solitary Confinement to Protect and Punish... 74
1. Special Housing Units (“SHUs”).. .76
a) Disciplinary Segregation... 76
b) Administrative Detention... 76
c) Protective Custody.. .78
d) BOP Tracking of Inmates in SHU...85
2. Lack of Alternatives to Protective Custody...87
a) Transfer to Different Housing Unit... 89
b) Transfer to Different Facility. . .90
3. Effects of Solitary Confinement ... 90
a) SHU Syndrome... 90
b) Effects on Vulnerable Inmates ... 93
c) Post-SHU Syndrome... 93
d) Destructive Effects of Isolation on Defendant.. .94
C. FMC Devens; BOP Program for Sex Offenders... 94
1. Sex Offender Management Program (“SOMP”).. .95
2. Residential Sex Offender Treatment Program (“SOTP-R”).. .96
3. PREA Compliance... 98
D. Risk of Harm Posed by Defendant to the Public... 99
1. Pedophilia and Pornography Addiction ... 99
2. Risk Assessment.. .100
3. Significance of Fantasies... 103
a) Letter Concerning Sexual Fantasy with Young Boy... 104
b) Fictitious Bus Company Applications ...105
4. Amenability to Treatment... 106
a) Defendant’s Child Pornography Addiction... 106
b) Defendant’s Empathy.. .108
5. Effects of Incarceration on Defendant’s Recidivism... Ill
a) Empirical Research... Ill
b) Expert Testimony.. .113
6. Proposed Treatment Plan... 117
a) Individual and Group Therapy... 117
b) Outside Controls... 119
c) Educational Training.. .119
d) Outside Support.. .119
E. Community Reentry Plan.. .119
V. Law.125
A. Statutory Mandatory Minimum ...125
B. Sentencing Commission Guidelines ...125
C. Restitution... 126
D. Eighth Amendment.. .127
1. Proportionality Analysis Applicable to Sentencing.. .128
a) Length of Sentence... 130
*23 b) Mandatory Minimum Sentences ... 180
2. Impact of Conditions of Incarceration on Sentence Proportionality...133 :
VI. Application of Law to Facts... 137
A. Fifteen Year Sentence If Properly Carried Out Not Unconstitutional... 138
1. Gravity of Offense... 139
2. Severity of Sentence... 140
3. MDC and Pre-Release Halfway
House... 143
B. Guidelines Excessive... 144
VII. Conclusion... 146
A. Sentencing Recommendations to BOP... 146
B. Unconstitutionality Should Court’s Recommendations Not Be Followed. . .147
C. Sentence Imposed.. .148
I. Introduction
Defendant is guilty of serious crimes: possession of child pornography and sexual exploitation of a child. A fifteen year minimum term of incarceration is mandated by statute.
The long term required, if served under the routine harsh and dangerous prison conditions D.W. faces, would be destructive to him, dangerous to society, and unconstitutional.
Under prevailing prison conditions, such a long term of incarceration would deny D.W.—with his severe mental problems— any meaningful opportunity to obtain needed medical treatment. It would likely expose him—gay, and previously repeatedly raped—to physical and sexual abuse. It would greatly increase the risk of suicide, given his repeated attempts at taking his own life. To protect him, it would probably include long, debilitating protective solitary confinement. Predictably, D.W. would be released from prison—if he survived— in more danger of recidivism than if he had served a shorter sentence, thus presenting a greater danger to society. Appropriately carried out, however, a sentence of fifteen years can be structured to avoid cruel prison conditions for this defendant, thereby avoiding unconstitutionality.
The trial judge cannot close his or her eyes to the conditions a particular defendant being sentenced will necessarily experience in prison. When a long term is fixed by statute, the prison environment must be considered by the sentencing judge in estimating total harm and benefits to prisoner and society—a utilitarian as well as a compassionate exercise.
Ours is a Madisonian government of independent departments—legislative, executive and judicial. To effectively carry out the people’s business these divisions of government must sometimes assist each other. Respectful cooperation is often required. The administration of criminal justice is an example: investigators, prosecutors, defense counsel, courts, prisons, and social assistance agencies must work together to protect the public and help the adjudicated criminal to a life free of crime. So, while a judge, in general, may lack the power on sentencing to direct the operation of federal prisons in an individual case—a responsibility of the Department of Justice—he or she must properly and reasonably recommend (assuming the recommendation will be given effect) how a person with special vulnerabilities should be treated in prison.
Sentencing is not merely an announcement of judgment. It is a prediction and assumption of how the sentence will be carried out.
*24 In D.W.’s case the judge must include in his sentence a strong recommendation on how the federal prison system must treat him. The judge assumes that the Department of Justice will respect these specific recommendations.
Only defendant’s initials are used in this memorandum because, were his full name published, the likelihood of his being attacked in prison would increase.
II. Factual Background
A. Abuse and Neglect by Biological Parents
Defendant is a twenty-seven year old male born in Brooklyn, New York. See Presentence Investigation Report (“PSR”) at ¶ 81.
He has lost contact with his biological parents. He was separated from them when he was five years old. They lost custody as a result of their drug use and neglect. Id. In February 1996, the Kings County Family Court terminated their parental rights. See Def.’s Post-Hr’g Mem. of Points and Authorities, Feb. 23, 2016, ECF No. 130 (“Def.’s Post-Hr’g Mem.”), Ex. 13 (Forestdale Adoption Homestudy) at 4. He has not seen them since. PSR at ¶ 81.
As accurately stated by defense counsel:
The first four years of [D.W.’s] life are a black hole. What we do know is that he and his siblings were removed from his parents’ custody due to his mother’s crack addiction, that he had huge amounts of lead in his system, that he likely suffered from fetal alcohol [and drug] syndrome, and that his intellectual functioning was severely impaired.
Def.’s Sentencing Mem., June 8, 2015, ECF No. 69 (“Def.’s Sentencing Mem.”) at 4 (emphasis added).
B. Abuse and Trauma in First Foster Family
At age four, defendant was placed in his first foster care home. A psychological assessment conducted when he was five revealed diminished mental capacity and other symptoms identified in children exposed to drugs while in útero. PSR at ¶ 81. Lead exposure as a child increased adverse effects on defendant’s mentation. Cf. G.M.M. ex rel. Hernandez-Adams v. Kimpson, 116 F.Supp.3d 126, 129-130 (E.D.N.Y.2015) (describing the harm caused to young children by lead and the disproportionate exposure of low-income and minority families). Symptoms included “tiny stature, difficulties with language acquisition and comprehension of concepts, articulation problems, etc.” Def.’s Post-Hr’g Mem., Ex. 12 (Joan Healy, Ph.D., Psychological Assessment Report for [D.W.], Jan. 8,1994) at 5.
The psychologist who performed the early evaluation, Dr. Joan Healy, noted that D.W. defecated in his bed and smeared feces on his face and in his hair. Id. According to her, this could be interpreted as a “gesture of despair in a child with plenty of reasons to feel that way.” Id. (emphasis added). Dr. Healy observed that defendant suffered the traumatic consequences of his early separation from his parents:
[His] sad and traumatic past is very much “with” him. His limited intelligence makes things worse, and he has trouble figuring out exactly what’s happening to him and his siblings, and why. Fantasies tend to be starkly realistic, with “cops taking the kids” away from one mother and giving them to another.
Id.
Defendant was described as a “retarded and very young child with a deprived and emotionally traumatized background,” liv *25 ing “on the edge of his world” in a “bunker of fear and depression.” Id. She called his self-esteem “abysmal” and determined that he was “a deeply traumatized child ... who lives on the edge, and can easily slip over, if additional stress is added.” Id. at 6. She concluded that he needed “calm and stable” surroundings in order to overcome his trauma:
This child needs school and home environments that are calm and stable, consistent in their requirements of him, and coordinated in their ideas about what his behavior should be. This child has a limited mind, and the simpler things are at this age the more he’ll be able to absorb. This is not to say that he doesn’t know what’s going on—he is all too well aware of the environment and trauma he’s been exposed to, and his depression, far from being pathological, is a “normal” reaction to it. Different, more affirming experiences will hopefully bring him out of his present dyspho-ria.
Id. (emphasis added). D.W.’s foster placements by the City did not provide the stability and tranquility he required.
At his first foster home, defendant was repeatedly raped. PSR at ¶88. His anus was penetrated. Id. His genitalia and mouth were violated. Id. Physically beaten by his foster brother when he refused to drink urine out of a bottle, he suffered a broken arm, a final signal to the City’s child welfare services that he needed to be removed from that home. Id.
When interviewed by a psychologist about his first foster home, he reported: “The kid who broke my arm also forced his penis into my mouth and would say ‘suck it like a pacifier, you baby.’ ” Id. Two other children living in the foster home reported stories of similar abuse; their foster brother “would wake them in the middle of the night, urinate in their mouths, make them take off their pants, and [tell] them to ‘lick [his] butt.’” Id.-, see also Def.’s Post-Hr’g Mem., Ex. 14 (Accident Report of Feb. 14, 1994).
Eventually, due to the children’s reports of abuse, D.W. was transferred out of this foster family and placed with another one. See Def.’s Post-Hr’g Mem., Ex. 15 (Social Worker Report of Nov. 8,1993).
C. Abuse and Trauma in Second Foster Family
In a psychiatric assessment carried out shortly after his placement with a second foster family, D.W. was reported as functioning below his age level, and as having suffered from “severe emotional deprivation.” Defi’s Post-Hr’g Mem., Ex. 17 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., Sept. 7,1994) (emphasis added). At age six, he was described by an evaluating psychologist as experiencing strong feelings of rejection and abandonment:
[D.W.] was found to be restless, having difficulty in relaxing, hyperactive, “always on the go”, nervous, jittery and fidgety. [D.W.’s] meager projective record is suggestive of a child who experiences himself as deprived, rejected and damaged. He seems to lack ego functions related to object constancy and the ability to self-soothe, leading him to often experience rageful and depressive effects in a direct, overwhelming manner. Generally, he does not see himself as being protected by others but rather views himself as alone, isolated and abandoned.
Def.’s Post-Hr’g Mem., Ex. 18 (Psychological Examination of D.W. by Randolph J. Maisky, Ph.D., Oct. 1994) at 5 (emphasis added).
*26 The abuse continued. At this second foster placement, defendant was repeatedly raped. PSR at ¶ 84. He described his sexual abuse at the hands of his foster father as “penetration] ... with his penis ‘over and over.’ ” Id.
Child welfare eventually removed him from this second foster home. The six-year-old had fled to a school bus in his underwear, clothing in hand, after being warned by his foster mother that if he was late to school she “would beat him all day.” Id.
D. Adoption
When he was about six years old, in 1995, D.W. was placed in a foster family of “lower socioeconomic circumstances.” Id. at ¶85. He was legally adopted by the family in 1998. Id. Defendant described the family as “strict but nice,” with loving parents. Id.
At age seven, a psychiatric evaluation again determined his self-esteem to be “poor.” Defl’s Post-Hr’g Mem., Ex. 19 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., June 30, 1996) at 2. His intelligence was described as “borderline to low average;” he met the criteria for Attention Deficit Hyperactivity Disorder (“ADHD”). Id. at 3. A psychological examination by Dr. Randolph J. Maisky, Ph.D. when D.W. was seven-and-a-half years old noted the effects of defendant’s emotional deprivation and presaged his future behavior:
It appears that while [D.W.] identifies with being vulnerable, fragile, and at times, at the mercy of environmental influences, there also seems to be a developing identification with the aggressor. The latter seems to be, from a defensive position, stemming from fears of annihilation. His apparent polarized view of the world about him leaves him emotionality] frightened, fatigued and depressed with minimal resources to meet age appropriate developmental challenges. There appears to be a relatively high risk of [D.W.] developing more serious psychopathology.
Def.’s Post-Hr’g Mem., Ex. 23 (Psychological Examination by Dr. Randolph J. Mai-sky, Ph.D, Mar. 30, 1996) at 7 (emphasis added).
By age eight, D.W. had been diagnosed with a learning disorder, as well as ADHD. See Def.’s Post-Hr’g Mem., Ex. 10 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., Feb. 16, 1997) at 1. Ritalin was prescribed. The effect of this “psychostimulant medication” was closely monitored. Id. Again, he was described as being of “borderline to low average” intelligence and having “poor” self-esteem. Id. at 2. Lead exposure history was noted as contributing to his ongoing problems. Id. at 3.
Between 1998 and 2007, D.W. was treated at the Far Rockaway Mental Health Clinic. See Defl’s Post-Hr’g Mem. at 9. Provided were combinations of individual, group, and family therapy, as well as medication management. Id. He was identified as having an “excessive need to please adults.” See Def.’s Post-Hr’g Mem., Ex. 24 (Far Rockaway Mental Health Clinic, Clinical Notes of Diane Nadasy, CSW, Dec. 3, 1999), Ex. 25 (Far Rockaway Mental Health Clinic, Clinical Notes of Diane Na-dasy, CSW, July 16, 1999) (stating that D.W.’s “tendency is towards pleasing adults and he may feel that this is the only way that he’ll be liked”).
Defendant attended special education classes until he graduated from Far Rock-away High School in 2007. PSR at ¶ 95. His learning disabilities prevented him from earning a regular high school diploma. Id. at ¶ 105.
*27 While in high school, D.W. worked at menial jobs at St. John’s Episcopal Hospital in Queens through a Board of Education program that offered job training to students. See Def.’s Post-Hr’g Mem. at 10; PSR at ¶ 112.
In the fall of 2007, defendant began attending Manhattan Community College. See PSR at ¶ 106. He did not earn any credits. In May of 2008 he was placed on academic probation. Id.
He subsequently was employed as a cashier at a Best Buy store for a year and a half; he was fired for failing to accurately record tardiness. Id. at ¶ 111. He then began work as a bus monitor. Id. at ¶ 110.
D.W. suffered from periods of intense depression resulting from his inability to complete college and loss of his job at Best Buy. See Dr. Richard Krueger, Psychiatric and Risk Assessment of Defendant, June 5, 2015, ECF No. 69-1 (“Krueger Report”) at 5, attached as Ex. A to Def.’s Sentencing Mem., June 8, 2015, ECF No. 69. He reported trying to kill himself in 2007. He tried to jump in front of a car; a friend intervened and pulled him back. See Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1. It does not appear that during this time his treatment addressed the severe abuse he had suffered as a young child. See Def.’s Post-Hr’g Mem. at 9-10. His adopted family was reportedly not aware of D.W.’s traumatic past until he wrote to his adoptive brother while incarcerated at the federal Metropolitan Detention Center (“MDC”) in the instant case. Id. at 10; PSR at ¶ 103.
E. Sexual History and Addiction to Child Pornography
Defendant reported that his first “crush” was at age eight on an eight year old female. See Krueger Report at 9. He told Dr. Krueger, an evaluating psychiatrist, that he considers himself bisexual. He reported that at age eleven, he began to look at, and masturbate to, images of prepubescent, pubescent and young teenaged males and females—males much more than females. He felt that he had a problem with “pornography addiction” from the age of eleven onwards, oftentimes deleting pornographic images from his computer to try and stop viewing them. Id.
He has never had a female coital partner, even though his first non-genital touching and petting was at thirteen with a thirteen-year-old girl. He had intercourse with a fifteen or sixteen year old male on one occasion when he was fourteen. Id.
F.State Incarceration
While employed as a school bus attendant in April of 2009, at age twenty, defendant was arrested. He had given “wedgies” to three young boys—that is to say he pulled their underwear up between their buttocks—and he fondled two of them. PSR at ¶¶ 70-72. He also reportedly showed these victims pictures of naked children on his cell phone. Id. at ¶ 70.
In a New York State criminal court, he pleaded guilty to two counts of sexual abuse and one count of endangering the welfare of a minor child. Id. at ¶¶ 70-72. For this crime, at age twenty-one, he was sentenced to three years in State prison. Id. at ¶¶ 70-72, 87.
1. Repeated Rape
During his State period of incarceration, from April 2009 until April 2012, defendant was repeatedly raped by other prisoners. Id. at ¶¶96, 100; Krueger Report at 5.
The first rape occurred in the shower room of the Oneida State Correctional Facility by another inmate. PSR at ¶ 96. A sixty-year old inmate “smashed [defendant’s] head against a showerhead and then raped him anally.” Krueger Report at 5. The assailant, who was attending the *28 same sex offender treatment program as D.W,, was removed from the facility. Id. As a result of his complaint, D.W. was treated by other inmates as “an outcast.” PSR at ¶ 96.
Transferred to Auburn Correctional Facility, defendant was again assaulted and anally raped by “several individuals.” See Krueger Report at 6; PSR at ¶ 96. Fearing the usual ostracism that results from making a rape complaint in prison, defendant suffered this abuse in silence. See Krueger Report at 6; PSR at ¶96. “[Defendant] said that [the] rapes had an [adverse] effect on him. He said that he had kept thinking about them, that he had become very guarded and untrusting of anyone, and he described the development of a startle[d] response.” Krueger Report at 6.
2. Mental Health and Suicide Attempts
While in State custody, D.W. was prescribed Celexa, Paxil, and Remeron to treat depression and anxiety. See Def.’s Post-Hr’g Mem., Ex. 37 (State of New York Department of Correctional Services Treatment and Medication Records).
Repeatedly, he tried to commit suicide. He twice attempted to hang himself. See Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 8, 2013) at 14 (also submitted as Def.’s Ex. KK). On at least one of these instances, he was saved by a correctional officer. See Def.’s Post-Hr’g Mem., Ex. 29 (Psychiatric Evaluation of D.W. by David Stern, M.D., May 3, 2012) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 8, 2013) at 15. He stated that he then paid another inmate to “stab” or “punch” him. Instead, that person reported him. See Def.’s Post-Hr’g Mem., Ex. 29 (Psychiatric Evaluation of D.W. by David Stern, M.D., May 3, 2012) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1.
D.W. stated that, while in custody at Rikers Island, he stockpiled medications and took them all at once. He was placed on suicide watch. At Bellevue Hospital, in a hospital prison ward, he tried to cut his wrists; at Downstate Correctional Facility, he dug into his wrists and was again placed on suicide watch. Krueger Report at 7.
G. Release from State Custody
Released from State custody in April 2012, defendant moved to the Charles H. Gay Shelter for Men on Ward’s Island. PSR at ¶ 87. He was not allowed to live with his adoptive mother while on parole because of his sex offender status—a daycare center had recently opened near her home. Id. D.W. became increasingly “paranoid,” depressed, and concerned with his safety at the shelter. See Dr. Robert Prentky, Evaluation of D.W., Sept. 12, 2013, ECF No. 69-2 (“Prentky Report”) at 9, attached as Ex. B to Def.’s Sentencing Mem., June 8, 2015, ECF No. 69. He feared that other former prisoners would attack him if they found out he was a sex offender. He overheard other shelter residents calling sex offenders “pieces of shit who should be killed.” Id. at 9, 15. Defendant experienced daily anxiety attacks; he reported feeling depressed, paranoid, and afraid, a sense that had started to overwhelm him after his first rape in prison. PSR at ¶ 97.
D.W. lost the help of his adoptive family following the significant shame and embarrassment they suffered as a consequence of his State arrest. See Def.’s Post-Hr’g Mem. at 14-15; PSR at ¶ 89; see also Letter of D.W. to the Court, July 6, 2015, ECF No. 74 (describing the adverse effect on his family of his State trial). Estranged from his family and with no support network, D.W. entertained suicidal ideations upon his release from State prison. See, *29 e.g., Def.’s Post-Hr’g Mem., Ex. 28 (GOSO Assessment, Apr. 24, 2012) at 2 (“[D.W.] presently reports suicidal ideation but has no concrete plans to take actions on his ideations.”), Ex. 29 (Psychiatric Evaluation of D.W. by David Stern, M.D., May 3, 2012) at 2 (“While [D.W.] is currently not actively suicidal, his history of impulsive suicide attempts and the continued stress of his current living situation and the stressors inherent in his transition to the community make his risk for relapse of depression or suicidal attempt higher.”); Ex. 30 (Mental Health Evaluation of D.W. by Debjani Bhowmick, NP, Aug. 6, 2012) at 1-2 (recounting that he felt that his life was over before it began and reporting past suicide attempts), Ex. 31 (D.W. Psych Note by Debjani Bhowmick, Sept. 17, 2012) at 1 (indicating that D.W. reported suicidal thoughts and lack of communication with his family), Ex. 32 (Queens Counseling for Change Sex Offender Client Summary Report, Aug. 2012) (“Parolee stated that he felt depressed and thought of suicide .... and stated that he just said it but did not mean it. However, he does admit, in the past, to being suicidal”), Ex. 42 (Queens Counseling for Change Sex Offender Client Summary Report, Jan. 2013) (noting that D.W. indicated “the following Risky Emotional States: depression, stress, abandonment, frustration, lonely, anxiety, feelings of useless, worthless, and suicidal feelings”). He reported “feeling bad about [himjself for committing [a] sex offense—especially since he himself was a victim of sexual abuse as a minor.” Def.’s Post-Hr’g Mem., Ex. 32 (Queens Counseling for Change Sex Offender Client Summary Report, Aug. 2012).
In April 2012, he walked along Grand Central Parkway with the intention of jumping in front of a car. He called his adoptive mother in what appears to have been a cry for help; she responded that she “could not deal with him anymore.” Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 8, 2013) at 15. Ultimately, a friend picked him up.
D.W. attended sex offender treatment— a condition of his State parole—at Queens Counseling for Change. He also received psychiatric care from St. Luke’s-Roosevelt Hospital Center and services from Getting Out and Staying Out (“GOSO”), a reentry program in New York City which provided assistance with medication and job placement. See Def.’s Post-Hr’g Mem. at 12; PSR at ¶ 97.
In an assessment carried out shortly after his release from State custody, GOSO noted defendant’s “remarkable mental health history,” including his past suicide attempts and current reports of suicidal ideation. See Def.’s Post-Hr’g Mem., Ex. 28 (GOSO Assessment, Apr. 24, 2012). He was referred to Dr. David Stern, M.D., a psychiatrist, for evaluation.
Dr. Stern reported that D.W. had been diagnosed with borderline personality disorder and adjustment disorder with depressed mood. See Def.’s Post-Hr’g Mem., Ex. 29 (Psychiatric Evaluation of D.W. by David Stem, M.D., May 3, 2012) at 1. The doctor observed that “[t]he possibility of Dissociative Identity Disorder and Borderline Personality Disorder should be considered when making a psychiatric referral.” Id. at 2. He noted that although D.W. denied a suicidal ideation or plan, he was “feeling suicidal two days prior.” Id. The doctor concluded that “[wjhile he is currently not actively suicidal, his history of impulsive suicide attempts and the continued stress of his current living situation and the stressors inherent in his transition to the community make his risk for relapse of depression or suicidal attempt higher.” Id. (emphasis added).
*30 Celexa was prescribed for his depression, Trazodone as an anti-depressant and sedative, and Depakote to stabilize his mood. See Def.’s Post-Hrig Mem., Ex. 38 (Initial Medical Evaluation by Dr. Vani Gandhi at St. Luke’s-Roosevelt Hospital, May 15, 2012) at 2, Ex. 31 (D.W. Psych Note by Debjani Bhowmick, Sept. 17, 2012) at 1; PSR at ¶ 102. Defendant continued to report feeling depressed and experiencing suicidal thoughts. See Def.’s Post-Hrig Mem., Ex. 31 (D.W. Psych Note by Debjani Bhowmick, Sept. 17, 2012) at 1, Ex. 32 (Queens Counseling for Change Sex Offender Client Summary Report, Aug. 2012). He attended monthly counseling sessions for depression. PSR at ¶ 97.
Because of his status as a sex offender, defendant struggled to find gainful employment. Id. at ¶ 109. He started handing out flyers for an energy company, North American Power, in 2012. Id. He then volunteered for “Green Energy,” a company located on the same premises as North American Power, where he was ultimately arrested in 2013 for the instant offenses. Id.
As described below, despite engaging with the mental health support network available to him upon his release from State prison, D.W. relapsed. He downloaded, viewed and collected child pornography while on probation. According to Dr. Robert Prentky—a forensic psychologist who examined D.W. in September 2013 (see infra Part III.G.3)—the resources available to him in the community did not target his specific risk or needs:
After he was released from [State] prison, the precautionary measures instituted by society and all of the rehabilitative services available to ex-offenders failed [D.W.] by not identifying and targeting precisely the risk that he posed and what his urgent needs were.
Prentky Report at 10-11.
III. Instant Offenses
A. FBI Investigation
On February 7, 2013, an agent working for the Federal Bureau of Investigations (“FBI”) logged into a publicly available peer-to-peer file-sharing program available on the internet. PSR at ¶ 3. He observed a user, operating under the screen name “Mikemunozl,” sharing over 1,800 files, including pornographic images of children. Id. at ¶¶ 3-4. Records obtained from the file-sharing website indicated two email addresses linked to the “Mikemunzol” screen name. Id. at ¶ 6. Both addresses were traced to a “facebook.com” account registered to an individual in Far Rocka-way, New York, who shared the name and appearance of defendant. Id. The internet protocol address associated with the file-sharing activity was registered to “Golden Care,” a Queens-based business. Id. at ¶¶ 5, 8.
The FBI interviewed the owner and manager of Golden Care. Id. at ¶ 8. She informed the agents that the second floor was rented out to a company, “Green Energy,” which accessed the internet through the Golden Care router. Id. Green Energy had two employees; one was defendant. Id.
A search warrant was issued authorizing a search of the Green Energy premises. Id. at ¶ 9. D.W. was present and agreed to be interviewed. Id. He granted the agents access to his peer-to-peer file-sharing account and made oral and written admissions regarding his use of the screen name “Mikemunzol” and the trading of child pornography on the internet. Id. at ¶¶ 10-11.
1. Possession of Child Pornography
Defendant told FBI agents that he had been working without pay at Green Ener *31 gy for three to four months. Id. at ¶ 12. As a condition of his State parole release, he had been denied access to computers. Id. at ¶7. Nevertheless, for about a month prior to his arrest, defendant had been using two computers at Green Energy, from which he traded child pornography. Id. at ¶¶ 10-13.
Defendant told FBI investigators that he stored child pornography on an external hard drive. He explained that he had obtained some of the child pornography on the hard drive prior to his State arrest in 2009. He had given the hard drive to a friend to keep in a safe deposit box. The friend did not know that it contained child pornography. D.W. retrieved the hard drive upon being released from State prison in April 2012. Id. at ¶¶ 13-14,16.
He informed investigators that “he had been mewing and trading child pornography since his release, and that he was addicted to child pornography.” Id. at ¶ 14 (emphasis added). When arrested he possessed at least 1,000 video files and 7,000 child pornography images on his computer. Id. at ¶ 18. Defendant admitted to his adoptive mother that he has “an addiction” to child pornography and “really needs help.” Id. at ¶ 89 (emphasis added).
2. Fictitious Bus Company
During execution of the search warrant, the FBI found several school bus routes. It appears that defendant “fantasized about being a bus driver,” and he had imagined a company called “Mike Transportation, Inc.” Id. at ¶ 17; see also Gov’t Post-Hr’g Mem. of Law in Opp’n to the Def.’s Req. for an Incarceratory Sentence Below the Statutorily-Required Mandatory Minimum, Apr. 1, 2016, ECF No. 140 (“Gov’t Opp’n Post-Hr’g Mem.”), Ex. 601 (Def.’s Fictitious Bus Company Documents) at 50-62. The defendant told the FBI that he never in fact travelled to the schools identified in the made-up routes. PSR at ¶ 17.
One of the documents retrieved by the FBI was a “questionnaire for a position as bus driver, bus escort, or bus attendant.” Id. The document included questions such as “What is your sexual orientation?; Have you or are you attracted to children in any way?; As part of security pre-screening, if you were asked to do something like give a description of your body would you?; Are you circumcised?; Are you a very hairy person?” Id.-, see also Gov’t Opp’n Post-Hr’g Mem., Ex. 501 (Def.’s Fictitious Bus Company Documents) at 51-54.
It is not clear whether the questionnaire made-up by defendant was ever used by him. See PSR at ¶ 17 (not mentioning how and if the questionnaire was used by defendant); Gov’t Sentencing Mem., June 10, 2015, ECF No. 71 (“Gov’t Sentencing Mem.”) at 5 (observing that “[t]hese materials can be interpreted different ways: perhaps the defendant was actually planning to start a bus company, or perhaps he was merely fantasizing about it. What is clear, however, is that he was using this fake bus company to lure people at his shelter to share their interest in child pornography and to provide nude photos.”).
Dr. Krueger testified that the bus company fantasy “could be consistent with a pedophilic interest pattern.” Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 71:19-20; see also infra Part IV.D.3. Defendant’s counsel has posited that the incident relates to D.W.’s childhood traumatic experience and related desire to become a bus driver. See Def.’s Post-Hr’g Mem. at 7, n,5; Def.’s Reply to Gov’t Mem. in Opp’n, Apr. 26, 2016, ECF No. 149 (“Def.’s Reply to Gov’t Mem. in Opp’n”) at 18-19. Pointed out was that when D.W. was found running in his underwear to catch the school bus, it was the bus matron who comforted him. See Def.’s Post-Hr’g Mem. at 7 (“Terrified and fearing for his life, [D.W.] ran to the bus, *32 wearing just his underwear. In this deeply vulnerable state, [D.W.] was taken into the care of the bus matron, who covered him in a jacket, comforted him, and brought him and his situation to the attention of school officials. After this incident, [D.W.] was removed from [his foster] home—he was quite literally rescued by his bus matron.”); Def.’s Reply to Gov’t Mem. in Opp’n at 19 (writing that D.W. “was reenacting, remembering, holding onto, absorbing and reabsorbing a rare act of human kindness in a dark time” and that his “creation of a bus company has to do with him processing his past” rather than amounting to “evidence of any serious deceit or an intent to abuse children”); see also PSR at ¶ 84; Prentky Report at 5-6.
Several of D.W.’s childhood medical and psychological evaluations indicate a consistent and recurring desire to become a school bus driver. See, e.g., Def.’s Post-Hr’g Mem., Ex. 19 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., June 30, 1996) at 2 (indicating that D.W., when seven years old, “would like to be a bus driver when he is grown”), Ex. 10 (Psychiatric Evaluation of D.W. by Di\ Flora F. Morente, M.D., Feb. 16, 1997) at 2 (again stating that D.W., then eight years old, “would like to be a bus driver when he is grown”), Ex. 20 (Queens Mental Health Clinic Psychiatric Evaluation, July 9, 1998) (noting that D.W., then nine years old, “wants to be a school bus driver”), Ex. 21 (FEGS Progress Note, Apr. 8, 1999) (stating that D.W., aged ten, “was looking forward to returning to school so that he can resume his job as the bus matron’s assistant”), Ex. 22 (Far Rocka-way Mental Health Clinic Clinical Note, July 5, 2000) (when asked to make three wishes, D.W., aged eleven, wrote “I wish I was a teacher to buses [sic] kid around”).
B. Arrest
Defendant was arrested on the premises of Green Energy on February 22, 2013— the same day that the search warrant was executed. PSR at ¶¶ 9, 14. He has been incarcerated at the Brooklyn MDC since the date of his arrest. See Def.’s Post-Hr’g Mem. at 16.
C. Sexual Exploitation of a Child
Defendant’s charge of sexual exploitation of a child relates to conduct that occurred prior to his 2009 State arrest. It was uncovered when federal agents reviewed evidence from his State conviction. PSR at ¶ 19. Included were images that had been on defendant’s phone, retrieved at the time of his 2009 arrest by the New York City Police Department (“NYPD”) pursuant to a search wai-rant. See Gov’t Sentencing Mem. at 1-2. Among the images were sexually explicit photographs of at least one young boy, as well as photographs of local day care centers. See id. at 2; Gov’t Opp’n Post-Hr’g Mem., Ex. 501 (Def.’s Pictures of Nearby Childcare Centers) at 203-208. The evidence indicated that the images of the young boy had not been downloaded from the Internet, as defendant had originally claimed. PSR at ¶ 19. Rather, the pictures has been taken by him. Id.
Investigators interviewed the pastor of a local church frequented by defendant prior to his State incarceration. The pastor noted that defendant had shared a close relationship with a young boy, and expressed his suspicion that the boy might have been sexually abused by defendant. Id.
After obtaining the mother’s permission, agents interviewed the boy. He told them that he first met defendant at church, when he was about five or six years old. He recounted that defendant showed him child pornography, which he identified as “sex with teens or younger,” on a laptop computer. The boy indicated that, on sev *33 eral occasions, defendant took him out to his car, where he sexually abused him. He said that they would sit in the back seat and his pants and underwear would be pulled down by defendant. Id. at ¶ 20. Defendant would then use his hand to rub the victim’s penis and masturbate him. Id. The defendant never touched the boy’s anus or put his mouth on his penis. Id. On at least one occasion, defendant masturbated in front of the boy. Id. The agents showed the boy images seized from the defendant. He identified himself in some of the pictures. Id.
There is no indication that these images were distributed by defendant. They do not involve penetration or sodomy. See Def.’s Sentencing Mem. at 6. Defendant has not engaged in any sexual contact with minors since his State arrest in 2009. Krueger Report at 15.
D.Plea Negotiations and Trial Preparation
A five-count indictment was filed in federal court on March 15, 2013. See Indictment, Mar. 15, 2013, EOF No. 7. It included four counts for distribution of child pornography and one count for possession of child pornography. Id.
Defendant entered a plea of “not guilty.” See Minute Entry, Mar. 23,2013, EOF No. 10. Plea negotiations were conducted over a long period while defendant remained in the MDC. See Order, Apr. 19, 2013, EOF No. 16.
- A superseding indictment was filed. See Superseding Indictment, Aug. 28, 2014, EOF No. 45. Added was a count for receipt of child pornography. Id. at 2.
Asking for an adjournment of a trial set for October 2014, the parties jointly requested permission to pursue plea negotiations. See Parties’ Joint Letter, Sept. 2, 2014, EOF No. -46. It was agreed that defense counsel would file a notice of intent to employ an insanity defense by late September. Id.
On September 22, 2014, notice was provided to the prosecution and the court that an insanity defense would be pursued on defendant’s behalf. See Notice of Insanity Defense, Sept. 22,2014, EOF No. 50.
Trial was reset for November 10, 2014. See Second Scheduling Order, Sept. 25, 2014, ECF No. 53. A plea hearing before the magistrate judge was scheduled for October 14, 2014. See Minute Entry, Sept. 30, 2014.
A superseding information was filed in October 2014, charging two counts: sexual exploitation of a child and possession of child pornography. See Superseding Information, Oct. 14,2014, EOF No. 56; see also Gov’t Letter, Oct. 3, 2014, ECF No. 54. Defendant waived his right to prosecution by indictment and consented to prosecution by information. See Waiver of Indictment, Oct. 14, 2014, ECF No. 55.
E. Guilty Plea
On October 14, 2014, defendant pleaded guilty before a magistrate judge to one count of possession of child pornography in violation of sections 2252(a)(4)(b) and 2252(b)(2) of title 18 of the United States Code, and one count of sexual exploitation of a child in violation of sections 2251(a) and 2251(e). See Hr’g Tr., Oct. 14, 2014, ECF No. 59. He did so despite being advised that, as a result of the plea, a fifteen-year mandatory minimum sentence would apply. Id. at 17:20-18:25.
F. Metropolitan Detention Center (“MDC”) Incarceration
1. Risk of Suicide
The defendant has serious mental problems with repeated suicide attempts. He arrived at the MDC on February 22, 2013. *34 In his intake form, he reported that he had been the victim of sexual assault. See Defi’s Ex. T (BOP Intake Screening Form, Feb. 22, 2013). He also stated that he was thinking of killing himself.
Immediately, he was placed on a suicide watch. A psychology report indicated his “overall risk of suicide” to be “high.” Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1. He remained on suicide watch for five days and was subsequently placed in the Special Programs Unit of the MDC, where inmates in need of additional psychological treatment are housed. See Gov’t Ex. 403 (BOP Post Suicide Watch Report, Feb. 27, 2013) at 8; Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 159:02-09.
While in custody at the MDC, defendant attempted suicide. See PSR at ¶ 98. Feeling utterly “helpless” and overwhelmed by depression, defendant slashed his wrist with a razor. Id. He explained: “I was inside my mind. Thinking of [my adoptive] Mom and family. I felt like my situation was helpless.” Id.
Defendant again expressed suicidal ideas on May 8, 2013, as he was being taken to the MDC’s Special Housing Unit (“SHU”): “He stated that he had just been in SHU overnight pending an outside medical trip, and stated his intention to not return to SHU. He stated that his current thinking is to kill himself and ‘put me and my family out of misery.’ ” Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 08, 2013) at 15; see also infra Part IV.B (addressing the use of SHUs by the Bureau of Prisons). The psychology report identified the following “suicide risk factors”: “SHU placement pending [Special Investigative Services] investigation, nature of his legal charges, history of suicide attempts, history of sexual abuse, unable to contact family currently, history of mental health concerns/treatment, reported suicidal ideation today.” Id. It also noted that “[finmate reports his suicidal ideation is conditional upon placement in SHU. This does not eliminate suicide risk, but suggests his motivation is more to avoid SHU placement than to kill himself.” Id. (emphasis added). He was again placed on suicide watch. Id. at 16.
After his release from suicide watch, defendant seemed to entertain some hope for the future, based primarily on his desire to reconnect with his family:
[D.W.] stated that he would not consider suicide currently because of his concern for his family’s current well-being, and his wanting to reach them to know about their health. He also reported that “I’m still young and I can work through my issues (referring to his reported abuse history.”).
Gov’t Ex. 403 (BOP Post Suicide Watch Report, May 13, 2013) at 23-24.
He was returned to the SHU. Id. at 24. Subsequent reports indicated that he would be “seen by Psychology Services every 30 days throughout the duration of his confinement to SHU.” Gov’t Ex. 403 (BOP Clinical Intervention-Clinical Contact Form, May 15, 2013) at 25.
At the MDC, D.W. has been diagnosed as having depressive disorder, anxiety, unspecified paranoid state, specified episodic mood disorder, and borderline personality disorder. Psychologists treated him with Divalproex (used in part to treat bipolar disorder), Setraline (antidepressant and anti-anxiety), Trazodone, Depakote (mood stabilizer), and Remeron (antidepressant). PSR at ¶ 99; Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 08, 2013) at 14-16; Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, May 8, 2014) at 30 (also submitted as Ex. 40 to Def.’s Post-Hr’g Mem.).
He has continued to exhibit symptoms of depression and anxiety throughout his pre *35 trial incarceration. See, e.g., Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, May 8, 2014) at 30 (“Inmate [D.W.] indicated during the past couple of weeks he has been struggling with lack of sleep, poor energy, poor appetite, and recurrent nightmares and flashback regarding his physical and sexual abuse during childhood .... He indicated he sent several cop-outs to Health Services. Psychology has been working with him, but it appears that the psychotherapeutic interventions have been insufficient. Inmate [D.W.] has been struggling with lack of support from family & friends. He feels abandoned, since his family has refused to talk to him.”); Gov’t Ex. 403 (BOP Psychology Services Suicide Risk Assessment, Nov. 10, 2014) at 31 (“[I]nmate [D.W.] wrote a letter to another inmate at another facility indicating that he had been sexually assaulted at a previous jail. He also indicated he was feeling depressed and possibly suicidal as a result of his legal case and lack of family support.”); Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, Feb. 13, 2015) at 35 (reporting “trouble sleeping, irritability, nightmares and flashbacks.”); Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, Sept. 29, 2015) at 41 (reporting “increasing depression and anxiety”).
2. Disciplinary Issues
During his incarceration at the MDC, defendant had two disciplinary reports. One resulted in a six month loss of phone privileges for allowing another inmate to use his prisoner’s number in placing a telephone call. Gov’t Ex. 402 (BOP Incident Report Form, Oct. 21, 2015).
The other incident involved allegations related to the Prison Rape Elimination Act (“PREA”). See infra Part IV.A (providing an overview of PREA). On June 11, 2013, a Special Investigative Services investigation concluded that D.W. had violated BOP rules and regulations by “engaging in sexual acts.” See Gov’t Opp’n Post-Hr’g Mem., Ex. 401 (BOP Incident Report, June 11, 2013) at 1. Defendant admitted to exposing his penis to another inmate, but stated “it was a mutual thing.” Id. at 5. Staff members also found letters in D.W.’s cell which “outlined [D.W.’s] sexual preference and what [D.W.] liked to do to various inmates.” Id. at 6. The Discipline Hearing Officer (“DHO”) placed D.W. in sixty days of disciplinary segregation and restricted his “commissary and visits.” Id. at 6-7. He was determined to no longer be eligible for housing in the Special Programs Unit. Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 159:06-20.
In a separate incident that did not result in disciplinary action, D.W. was found to have been writing sexually explicit documents. See Gov’t Ex. 403 (BOP General Administrative Note, May 10, 2013) at 20; Gov’t Opp’n Post-Hr’g Mem., Ex. 404 (Def.’s Handwritten Notes). They included what appeared to be a journal entry describing a sexual fantasy with an eight-year old boy. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 166:23-167:01 (noting that there were no indications that defendant’s handwritten note was intended to be sent and that it resembled “a diary type of reflection”). In the handwritten notes, D.W. described the young boy initiating and willingly participating in a sexual encounter involving oral, digital, and anal sex. Gov’t Opp’n Post-Hr’g Mem., Ex. 404 (Def.’s Handwritten Notes); Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 163:04-165:07. There was no evidence that this note was sent; defendant was not subject to discipline. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 164:14-165:12, 166:23-167:01, 195:09-196:09.
*36 In June 2015, D.W.’s cellmate alleged that D.W. had made sexually suggestive comments to him. See Gov’t Ex. 403 (BOP Sexual Abuse Intervention Report, June 1, 2015) at 37 (also submitted as Ex. 41 to Def.’s Post-Hr’g Mem.). D.W. was accused of “attempting to speak to his cellmate about children in a sexual manner, making suggestive comments about gay pornography, and asking his cellmate personal sexual questions such as ‘are you circumcised?’ ” Id. Defendant denied the allegations. He admitted to asking his cellmate if he was circumcised, but stated that this comment was taken out of context. Id. The charges were investigated but not sustained. D.W. was placed in the SHU pending the investigation.
In November 2015, an investigation was initiated when D.W. wrote a “drop note” stating that an inmate had been sexually assaulted by another inmate. Gov’t Ex. 405 (BOP Mem. of Interview, Nov. 6, 2015). When interviewed, D.W. admitted to writing the note and stated that he “felt like [he] needed to report this incident because [he] was sexually assaulted when [he] was in the state jail and [did] not want to see this to happen to another inmate.” Id. An investigation was conducted and the allegation was determined to be “unfounded.” Gov’t Ex. 405 (BOP Mem. for Timothy Geier, Nov. 6, 2015).
3. Lack of Family Support
Defendant’s counsel indicated that D.W. has largely lost touch with his adoptive family:
During the three years he has been at MDC, [D.W.] has not received a single social visit, despite the fact that his large adoptive family is based in New York City. He has had extremely limited contact with his mother and brother ... the only one of his adoptive siblings [D.W.] has spoken with since his arrest. Despite repeated outreach efforts, they have never come to court, nor to defense counsel’s office to discuss what clearly is an extremely serious case. In his contact with psychological services at MDC, he has consistently cited the lack of support from his family as a cause for deep despair.
Def.’s Post-Hr’g Mem. at 18-19 (emphasis added).
Although defendant has attempted to reconnect with his adoptive mother and brother, his efforts, so far, appear to have been unsuccessful:
After [D.W.] wrote to his brother ... to explain the abuse he was subjected to before going to live with [his adoptive family], [his brother] relayed to [D.W.] through defense counsel that the letter had touched both him and their mother, who he said had been moved to tears. But even in light of these revelations, [they] have continued to shut [D.W.] out of their lives, ignoring phone calls and never visiting or writing. For a while, [D.W.] held out hope that he could maintain a relationship with his family; that they would eventually come around. But after three years of near silence on their end, whatever foundation there was for that ultimately false hope has crumbled. [D.W.] has been forced to give up on the family that raised him, after so many false starts in abusive foster homes.
Id. at 19 (emphasis added).
In May 2014, it was reported by the MDC’s Psychology Services department that D.W. “has been struggling with lack of support from family & friends. He feels abandoned, since his family has refused to talk to him.” Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, May 8,2014) at 30.
*37 Defendant’s lack of familial support is a factor that will need to be addressed in a reentry program upon D.W.’s release from custody. See Order, Apr. 8, 2016, ECF No. 141, at 2-8 (noting that “[t]here is no present probability of family, companion, or other support available to defendant upon reentry, as there is in other cases before the court,” and requesting the parties to address “what resources will probably be available to this defendant after he is released from incarceration that will result in adequate protection to the public as well as support his own appropriate development”); see also infra Part IV.E (addressing the community reentry plans suggested by the parties).
According to his counsel, defendant has renewed a relationship with one of his biological siblings since his incarceration. Def.’s Post-Hr’g Mem. at 19. They exchanged letters, and D.W.’s brother “has vowed to remain supportive and be a part of D.W.’s life going forward.” Id. He has also been in contact “with an elderly woman in Pennsylvania, whom he began corresponding with while in State prison.” Id. at 20. Although they have never met, he refers to her as his “grandmother.” The relationship appears to be supportive; she writes to him and contributes to his commissary account. Id.
G. Sentencing
1. Offense Level, Category, and Sentencing Guidelines Range
The offenses D.W. pled guilty to carry a minimum term of imprisonment of fifteen years (180 months) and, if cumulated, a maximum term of fifty years (600 months). See Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 8:09-9:10.
The applicable Sentencing Guidelines range was agreed upon by the parties and found to be 292 months (24 years) to 365 months (30 years) of imprisonment, based on an offense level of 37 with a criminal history category of IV. See id. at 13:20-14:10.
Defendant’s counsel sought a sentence no greater than the applicable mandatory minimum term of fifteen years. See Def.’s Sentencing Mem. at 1.
The government argued for a sentence higher than the minimum, within the applicable Guidelines range (24 years to 30 years), but it took no position as to where within the range the sentence should fall. See Gov’t Sentencing Mem. at 1, n.l.
2. Victim Impact
The young boy identified as having been molested by defendant, see supra Part III.C, submitted a victim impact statement. He stated:
[D.W.] sexually abused me when I was younger. He touched me in ways that I didn’t feel comfortable. If I would have been a little bit older, I would have been able to not let him touch me the way he did. When I was with him by myself, I didn’t like it. What happened was not what was supposed to happen to me.
When I was younger it affected me a lot because I thought about it a lot but never told anyone. I sometimes had trouble sleeping because it was always on my mind. I didn’t like talking to people. I felt ashamed and very uncomfortable. I didn’t tell my mom because it didn’t feel right talking about it, and I felt like there was nothing I could do about it.
Now that I am older, I don’t think about it because I have gotten into activities that help get my mind off of the sexual abuse.
In my opinion, I think [D.W.] should go away for a long time. It wouldn’t be right for him to come out and do *38 the same thing to someone even younger than I was.
PSR at ¶ 23.
A sampling of the child pornography images collected from defendant was sent to the National Center for Missing and Exploited Children (“NCMEC”). Certain images depicted minors already known to law enforcement. See id. at ¶¶ 24-36. Some victims provided impact statements. Id. at ¶ 37. Three victims have submitted requests for monetary compensation from defendant. See id. at ¶ 38; Second Addendum to PSR, Apr. 25, 2016.
3. Medical and Psychological Evaluations
In preparation for sentencing, an evi-dentiary hearing was conducted. See Order, Apr. 15, 2015, ECF No. 63. The parties were ordered to present experts on the “dangers presented by the defendant and recommendations for treatment and incarceration.” Id.
The defendant submitted reports by Dr. Richard Krueger, M.D. and Dr. Robert Prentky, Ph.D. The government noted that it would introduce the testimony of Dr. N. G. Berrill. Because defendant did not wish to be interviewed by Dr. Berrill, the government did not ask him to submit a written report. Gov’t Sentencing Mem. at 6, n.5. The government had also previously requested Dr. Barry Rosenfeld, Ph.D. to evaluate defendant. His evaluation was limited to the issue of whether defendant was mentally fit to stand trial. See Hr’g Tr„ June 11,.2015, ECF No. 128, at 10:17-20.
The experts’ reports are summarized below.
a) Dr. Richard B. Krueger, M.D.
(1) Employment and Qualifications
Dr. Richard Krueger, M.D., is a psychiatrist specialized in the diagnosis and treatment of sex offenders. In addition to having a private practice, he is medical director of the Sexual Behavior Clinic at New York State Psychiatric Institute and associate professor of psychiatry at Columbia College of Physicians. See Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 4:16-19. A 1977 graduate of Harvard Medical School, Dr. Krueger was board certified in psychiatry at Boston University Medical Center in 1984. Id. at 4:22-5:02. He also is board certified in addiction psychiatry and forensic psychiatry. Id. at 5:02-05.
Dr. Krueger has had extensive experience researching paraphilie disorders. He was part of the committee that revised the American Psychiatric Association’s diagnostic and treatment manual, and he participates in the work of the committee of the World Health Organization writing the criteria for the International Classifications of Disease manual, “revising the classification of paraphilie disorders, of disorders of sexual interest, patterns of sexual interest.” Id. at 6:08-25.
He is a member of the Association for the Treatment of Sexual Abusers, and, for the past twenty years, has been on the board of its New York chapter, the New York Association for Treatment of Sexual Abusers. Id. at 7:20-24. He also is a member of the International Academy of Sex Research and the International Association for the Treatment of Sexual Offenders. Id. at 8:01-06.
An “essential part” of his work in evaluating and treating sex offenders is assessing their risk of re-offense. Id. at 8:07-11. He estimates that he has evaluated, treated, and prepared risk assessments for over a thousand sex offenders. Id. at 8:12-15. He describes his work in such evaluations as performing “a comprehensive ... mental health assessment with the goal of achieving whatever diagnosis there might be, of seeing what might be treatable, then *39 a risk analysis and addressing that risk with a treatment plan or treatment recommendations.” Id. at 8:16-24.
(2) Basis for Evaluation
At the request of defense counsel, Dr. Krueger carried out an evaluation of D.W. See generally Krueger Report. This evaluation was based on:
• Dr. Krueger’s four-hour interview of defendant;
• Psychological and psychiatric testing;
• His review of the materials listed in his report, which included:
o extensive psychological and psychiatric records from D.W.’s childhood and from the treatment he received following his release from State prison;
o documents related to the offense conduct in the instant case, such as the criminal complaint and PSR; and
o the reports of Dr. Robert Prentky and Dr. Barry Rosenfeld.
See id. at 1-4. His findings and recommendations were submitted to the court with defendant’s sentencing submission of June 8, 2015.
(3) Results of Evaluation
Dr. Krueger utilized a number of tests aimed at assessing deviant and non-deviant sexual behavior, other psychiatric syndromes, personality functioning, and risk of re-offense. See id. at 10-13.
He found that D.W. “had a command of language and interaction, which was far beyond his purported IQ of 70. He was able to provide a very coherent history and he was quite open about his various sexual interests and experiences.” Id. at 13. Defendant admitted to having a “pornography addiction ... with inappropriate interest in images of minors” and being “willing to engage in treatment.” Id. at 14. He noted that D.W. “had good insight, good judgment, and good impulse control.” Id.
Dr. Krueger observed that defendant “has an extreme history of adverse childhood experiences with his ACE [Adverse Childhood Experiences] score of 9 out of 10 being the highest I have encountered in my career.” Id. (emphasis added). He determined that defendant continues to suffer from mental illness and “mild mental retardations”:
[D.W.] makes criteria for bipolar disorder II, for panic disorder without agoraphobia, and for posttraumatic stress disorder chronic. [D.W.] is on Depakote and Remeron to treat his bipolar disorder and is euthymic currently; he appears to be responding well to this treatment. [D.W.] has had numerous suicide attempts in the past, none being extremely lethal; he appears to have stabilized currently and is not suicidal. He has not received treatment for his posttraumatic stress disorder. He also has a history of priapism [ie., prolonged erection] secondary to trazodone. He also makes criteria for mild mental retardations, although his interaction and command of language during interviews suggests a much higher level of intelligence.
Id.
This psychiatrist determined that defendant “makes [the] criteria for pedophilia,” as well as “for a paraphilia not otherwise specified or ephebophilia, with a dysfunctional interest in teenagers, and for a sexual disorder not otherwise specified, or hypersexual disorder characterized by pornography dependence.” Id. (emphasis added). His diagnoses are summarized in the following table:
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Id. at 15-16.
While Dr. Krueger found that defendant’s “risk of sexual re-offense is high according to several instruments used to assess such risk,” the expert indicated that the lack of evidence of him having abused *41 any child since his initial State arrest in 2009 was a positive factor:
Additionally with regard to [D.W.’s] risk of re-offense, I would add that the charges of sexual exploitation of a child are similar to what would be referred to as an “index cluster.” Not infrequently, individuals who are arrested for sexual crimes against children will have many other crimes discovered or victims who come forth at the time of the index, or most recent arrest. In this case, the crimes involving sexual exploitation of a child occurred during behavior that [D.W.] had engaged in the past, prior to his initial arrest. The significance of this is the fact that [D.W.] did not physically abuse a child after his first ar rest; the episodes of hands on abuse or exploitation of children perpetrated by [D.W.] occurred prior to his initial arrest and there have been none since. From a point of view of assessing risk, this is important inasmuch as [D.W.] did not reengage in physical abuse of children following his initial arrest for such charges. Further, in assessing risk what is most salient is the number of arrests an individual has had, not the number of victims.
Id. at 14-15 (emphasis added).
This expert concluded that “[d]espite his diagnosis and increased risk [D.WJ ... could be very well managed under the usual conditions of outpatient treatment imposed by Federal Probation.” Id. at 15 (emphasis added). He pointed out that sex offender treatment “should be delivered with the awareness that he had downloaded child pornography while under the supervision of New York State parole.” Id. According to Dr. Krueger, although defendant has “a moderate-high or high level of risk for re-offense,” he is “very capable of being managed in the community under strict and intensive supervision and treatment.” Id. In this expert’s opinion, “a lengthy period of incarceration provides no additional benefit from a treatment perspective.” Id. (emphasis added).
Dr. Krueger ended his report by summarizing D.W.’s position, while criticizing available treatment in federal prisons:
[D.W.] has a history of profound childhood trauma and a long history of sexual deviance involving mainly the use of child pornography. [D.W.’s] risk of re-offense is moderate high to high. [D.W.] relapsed using child pornography while under supervision of New York state parole, but was not subject to the tight conditions of Federal Probation during the time that he relapsed in his use of child pornography. These in my opinion would very substantially decrease his risk of recidivism going forward and could include polygraphy, computer and location monitoring, restriction of contact with children and intensive supervision by probation. Although [D.W.] faces a substantial period of incarceration before release into the community, the therapeutic cost benefit of this is questionable. On the one hand, a longer sentence may have some deterrent effect. On the other hand his adaptive skills in living in society would in my opinion be adversely affected (i.e. he would not have to work or care for himself). It has also been my experience that the federal prison system offers little to such sexual offenders. While there are sex offender specific programs that exist in the federal system, I have had several internet pornography offenders who report they have received absolutely no sex of *42 fender specific therapy while incarcerated.
Id. at 16 (emphasis added).
b) Dr. Robert Prentky, Ph.D.
(1)Employment and Qualifications
Dr. Robert Prentky is a forensic psychologist specialized in the assessment of juvenile sex offenders. He is a fellow of the American Psychological Association and the Association for Psychological Science. See Prentky Report at 19. At the request of defendant’s counsel, he examined D.W. in September 2013. He submitted a written evaluation. See generally id.
(2) Basis for Evaluation
Dr. Prentky’s findings and recommendations are based on:
• a four-and-one-half hour interview with D.W., conducted in the MDC’s SHU;
• the Abel Assessment of Sexual Interest (“AASI”); and
• the documents listed in his report, which include:
o extensive psychological and psychiatric records from D.W.’s childhood and from the treatment he received following his release from State prison; and
o documents related to the offense conduct in the instant case, such as the criminal complaint.
See id. at 1-2. His findings and recommendations were submitted to the court with defendant’s sentencing submission of June 8, 2015. At the time of his examination, the government had not yet learned that D.W. had molested an additional child in 2009.
(3) Results of Evaluation
Dr. Prentky detailed D.W.’s history of severe physical and psychological abuse, from when he was just a child to the time he was raped while in State custody. See id. at 3-8. According to Dr. Prentky “to say that [DSN.] is ‘a product of his upbringing’ is tragically accurate.” Id. at 14 (emphasis added). He described defendant’s childhood in stark terms:
[D.W.’s] developmental history was severely and chronically scarred by maltreatment, ranging from profound physical abuse (e.g., broken arm, forced ingestion of urine) and equally profound emotional abuse (frightened by many of his caregivers and/or their offspring) and neglect (e.g., denial of food—being “locked up in a basement pleading to eat” and hygiene—“smelling like a sewer rat”) to highly intrusive sexual abuse, including oral, digital and anal penetration with early onset and by multiple perpetrators spanning years.
Id. at 14.
This expert emphasized the harsh difficulties that defendant faced upon his release from State custody; it included inadequate housing, inability to find work and feelings of abandonment. This lead to increased depression and his relapse into viewing child pornography:
[D.W.’s] post-prison reintegration and adjustment was characterized by numerous challenges, such as being assigned to a shelter with other ex-offenders, as well as disappointments, most importantly not being allowed [to] return home (to [his] family). Roughly eight months before his arrest for child pornography, he started spiraling downwards. By May or June his depression and anxiety attacks were becoming serious. He began feeling increasingly frightened of the other ex-offenders in the shelter who were overheard remarking that sex offenders were “pieces of shit who should be killed.” He was unable to *43 find a job and his self-esteem was reported to be “below zero.” He felt abandoned by [his adoptive family], the only family that he felt loved him. Suicidal ideation increased (e.g., “I just wanted to die. I wanted to not feel any more pain.”). Over a period of about six months, his depression went from mild to severe to suicidal. The last straw, as he referred to it, was enduring Christmas without family. This was roughly 11/2 months before his arrest.
Id. at 15 (emphasis added).
Referring to his child pornography addiction, defendant told Dr. Prentky that “a lot of the stuff I watched, is stuff that happened to me. I don’t know what drove me to go down this road, but it seemed like when I saw kids doing it to each other it wasn’t rape, it wasn’t forced.” See id. at 10, 16. Dr. Prentky observed that such an “analysis” is “common for those with long histories of abuse.” Id. at 16. This psychologist explained that as a victim of extreme childhood sexual abuse, D.W. may have been employing complex coping mechanisms to overcome the trauma he had experienced:
Absent trauma therapy, which he has never been afforded, he was trying to gain mastery over his own abuse by viewing the “stuff that happened to me” as not really rape and not really forced. The fact that it comes at a pivotal time, a nadir of despair, depression, perceived abandonment, feelings of worthlessness, is critical to understanding who [D.W.] is. Had he been searching for child pornography during the “good times,” or at least during average times, we might surmise that his interest in child pornography reflected a clear interest, if not “orientation,” and was intended to gratify his sexual needs. It appears in his case, however, that searching for child pornography may have had two other possible motives: (1) His initial motive for accessing adult pornography may have been a coping response for his rapidly deteriorating mood (i.e., watching pornography initially took his mind off his troubles and, at least temporarily, provided some relief), (2) as noted, attempting to achieve mastery over a horrific sexual abuse history by “converting” those childhood experiences to something that was non-abusive (i.e., I’m looking at kids doing the same “stuff’ and it doesn’t seem forced; it doesn’t seem like rape). If he could “wipe out” that entire part of his life, he can eliminate a major source of his depression.
Id. at 16-17 (emphasis in original).
Dr. Prentky observed that “[D.W.] is now a young adult who has been failed by his birth parents and subsequently by the safety net of protections that are in place and intended for children like [him].” Id. at 10 (emphasis added).
The “AASI test” was used by this expert to assess defendant’s sexual interest, including any pedophilic attraction to children. This test “relies on visual reaction time in response to clothed models of children, adolescents, and adults to measure sexual interests.” Id. at 11. It has two components: a lengthy questionnaire inquiring about “sexual thoughts, fantasies, and behavior,” as well as a “computerized assessment of self-reported sexual interest in slides” depicting both children and adults. Id.
Dr. Prentky reported that “[D.W.’s] AASI profile, as noted, is complex and undoubtedly reflects what is known about him, a history of severe, protracted sexual abuse with multiple perpetrators resulting in confusion and fluidity of sexual interests.” Id. at 12. While defendant’s sexual *44 preference is unlikely to be stable at this time, Dr. Prentky explained, defendant did appear to “be struggling with sexualized interest in latency age children.” Id. at 14 (emphasis added).
In terms of the risk posed to the public, Dr. Prentky observed that defendant “undoubtedly is one of the saddest cases of neglect that I have seen.... I have evaluated numerous sex offenders, however, with far less traumatic histories but who posed far more of a risk than [D.W.].” Id. at 17 (emphasis added). He also concluded that, despite defendant’s history of serious abuse, he displayed no signs associated “with violence or chronic antisocial behavior.” Id. at 18. Dr. Prentky summarized his positive evaluation of D.W. as follows:
[D.W.] is not, by any means, a “lost cause." Far from it. In my opinion, based on my comments above, [D.W.] is highly treatable. In a secure holding environment with proper identification of risk and needs, a sound therapeutic regimen that targets his needs, a secure, supportive placement and job upon release, and reunification with members of his [adoptive] family, his prognosis is good.
Id. (emphasis in original; emphasis in first sentence added).
c) Dr. Barry Rosenfeld, PhJD.
(1)Employment and Qualifications
At the government’s request, in April 2014 defendant was evaluated by a clinical psychologist, Dr. Barry Rosenfeld, Ph.D. See Gov’t Opp’n Post-Hr’g Mem., Ex. 501 (Psychological Evaluation of D.W. by Barry Rosenfeld, Ph.D., Apr. 21, 2014) at 113-118. Dr. Rosenfeld is a professor in the Department of Psychology at Fordham University. See Gov’t Letter, Apr. 4, 2014, ECF No. 37.
(2) Basis for Evaluation
Dr. Rosenfeld’s evaluation was based on:
• An interview with defendant;
• His review of defendant’s prior psychological evaluations, as well as the charging documents in the instant case; and
• Psychological testing.
Gov’t Opp’n Post-Hr’g Mem., Ex. 501 (Psychological Evaluation of D.W. by Barry Rosenfeld, Ph.D., Apr. 21, 2014) at 113.
(3) Results of Evaluation
Dr. Rosenfeld reported that D.W.
described numerous symptoms of depression and anxiety, including problems sleeping and nightmares several times each week, diminished appetite, and “panic attacks” approximately 3-4 times per week. ... He also reported diminished energy, feeling bad about himself, and periodic thoughts of suicide. He acknowledged having thought about suicide as recently as one week ago but stated that he has not informed his doctors about these thoughts.
Id. at 116.
Several psychological tests were administered, aimed at assessing D.W.’s cognitive effort (i.e., “[his] motivation to perform to the best of his abilities”). Id. at 117. Dr. Rosenfeld concluded that defendant was misrepresenting:
[D.W.’s] current clinical presentation, coupled with the results of psychological testing, is suggestive of deliberate exaggeration of psychiatric symptoms and/or cognitive limitations. To be sure, [D.W.’s] history is unequivocal in pointing to chronic behavioral problems and intellectual limitations. Likewise, his report of prior physical and sexual abuse during childhood is consistent with the available records, and *45 these experiences are no doubt related to his chronic behavioral problems. However, notwithstanding the fact that some of his psychiatric symptoms and cognitive deficits are likely genuine, [D.W.] appeared motivated to exaggerate (substantially) the extent of his problems during the present evaluation. Thus, while there is little doubt that [D.W.’s] actual intellectual functioning is below average (though not to the extent suggested by thé current testing), the true extent of his psychiatric symptoms and intellectual limitations cannot be accurately gauged in the present evaluation due to the high likelihood of deliberate exaggeration.
Id. at 118 (emphasis added).
4. Sentencing Hearing of June 2015
In June 2015, defendant’s sentencing hearings commenced. See Hr’g Tr., June 11, 2015, EOF No. 128. A video recording was made. Id.
This court observed that D.W. appeared “seriously troubled, exceptionally passive, and deeply depressed.” United States v. D.W., No. 13-CR-0173, 2015 WL 3892643 , at *2 (E.D.N.Y. June 25, 2015). Sua sponte, the court asked the parties to address defendant’s capacity to plead, as well as whether a sentence of fifteen years in this case would effectively increase punishment, given defendant’s past abuse in prison and the probability of a sexual assault while incarcerated:
COURT: I am not satisfied with the plea. I do not understand why there should be a plea to a 15 year minimum when he could be tried and receive the same sentence because it is quite clear I am not going above the 15 year minimum. In addition, having studied the papers and read the presentence investigation report, as I understand it, the background is repeated rapes in prison on prior incarcerations. Correct?
[DEFENDANT’S COUNSEL, HOYES]: He was raped twice in prison.
COURT: What prison, federal or state?
HOYES: State.
COURT: If I sentence him to 15 years, there is a treatment program in Massachusetts which I visited. Are you aware?
[ASSISTANT UNITED STATES ATTORNEY, PAULSEN]: I believe that’s right, Your Honor. I’ve read it from other cases.
COURT: The full treatment is about three years or a little less than that and then he is placed in general population. Correct?
PAULSEN: I believe that’s right, Your Honor.
HOYES: Judge, I’m not even a hundred percent sure that the treatment happens at the beginning of the period of incarceration.
COURT: I understand. He may be in general population before and he certainly will be in after and although there are precautions that are taken at that facility, which I have visited in connection with the C.R. case, where I think rapes are much less likely because of the heavy supervision by psychiatrists and others, I am concerned about this case and I am not prepared to sentence. I would like to set an evidentiary hearing in roughly 30 days or as long as it is necessary on the dangers presented to the defendant and recommendations for treatment and incarceration .... In addition, ... I want to know whether, given these circumstances and the possibili *46 ty of other sentences, including treatment outside of prison for a defendant of this kind with this background and risks, a 15-year sentence, most of which will be served in the general system, with risks of abuse, sexual and otherwise, a young person who has had those abusive experiences, constitutes cruel and inhuman punishment making the ... 15 year minimum challengeable on constitutional grounds.
See Hr’g Tr., June 11, 2015, EOF No. 128, at 4:16-6:16.
A further evidentiary hearing was ordered. In a memorandum, the court directed the parties to address: (1) defendant’s capacity to understand the implications of his decision to plead guilty; and (2) whether sentencing him to a fifteen-year mandatory prison term would amount to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
Specifically, the court raised the following five issues:
First, why did this defendant decide to plead when that would necessarily result in incarceration for at least fifteen years in lieu of exercising his constitutional right to a jury tidal? Counsel were aware that an adverse jury verdict would have resulted in the same sentence as would a plea. Second, on June 11, 2015, as demonstrated by a video recording, the court observed defendant’s passivity and depression. In light of these observa- • tions, and any other relevant information, a withdrawal of defendant’s guilty plea will be considered at the • hearing. The issue is whether the defendant is capable of responsibly forfeiting his right to a trial.
Third, whether sentencing this defendant—who has been raped multiple times—to the statutory minimum sentence of fifteen years violates his right to be free from cruel and unusual punishment.
The parties should inform the court of what protections or treatment are available, or are likely to be made available, to defendant in prison under a fifteen-year sentence. Should the court take into account that protecting the defendant against sexual attacks may require solitary confinement?
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Fourth, in the event the court finds that sentencing this defendant to prison for fifteen or more years violates his constitutional rights under the Eighth Amendment, what types of appropriate alternatives to incarceration are available? For example, should consideration be given to whether the prison authorities would place defendant in the residential sex offender treatment program such as the one at the Federal Medical Center Devens (“Devens”), an administrative security federal medical center with an adjacent minimum security satellite camp, located in Ayer, Massachusetts. The court may lack effective control of incarceration conditions through sentencing.
Fifth, what are the attendant risks posed by defendant if released into society before or after having completed a course of treatment, such as that at Devens, or a full term of incarceration of fifteen years followed by a lifetime of supervised release and other conditions—or other possible sentences?
See D.W., 2015 WL 3892643 , at *3-4.
5. Defendant’s July 2015 Letter to Court
Shortly after the initial sentencing hearing, D.W. submitted a hand-written letter *47 to the court. He expressed his desire to take responsibility for his actions by pleading guilty and sparing his family the pain of a public trial. He also stated his intention to accept a fifteen year term. He feared a longer sentence from another judge, were the present judge not available after a possible reversal of a sentence under the applicable mandatory minimum term:
Dear Judge,
I am writing to you today to first thank you for all that you have been doing in my ease[.] I know you are trying to find the best solution for me in this case. I feel that this letter will answer some of your questions and at the same time give me a chance to tell you how I feel about what has been going on. First I never wanted a trial and still don’t want one. Because I know how these types of cases end up in the media and it puts my life out their [sic] for the public to see and my family’s life out there as well and the public will judge not only me but my family for my mistakesf.] My 2009 case was very public which made it impossible for my family to go anywhere and not feel that people were talking about them. My little brother and sister [were] so embarressed [sic], that they did not want to go to school. I also do not want my victims to go through anymore hurt, pain, embar-ressement [sic], I know how it feels and I wanted to spare them as much as I could. I am so sorry for all my actions that have caused so many people hurt and pain and embarressment [sic].
I also wanted not [to] go to trial and accept full responsibility for my mistakes and action and I felt by not going to trial I was accepting responsibility and that is the thing that I want to do.
I am also in the process of trying to rebuild my relationship with [my] family. Since being in this trouble I was able to locate my biological brother ... and I am trying to reconnect and start and build a relationship with him.
Second I want to say that I am fearful that if I don’t get sentenced by you and I don’t get sentenced to the mandatory minimum of 15 yrs [which] I feel scared of taking and getting the 15 yrs but I am more scared that if you sentence me under the 15 yrs and it gets overturned the case would he taken from you and given to another judge and that judge would sentence me to more than 15 years. Yes I feel scared about spending 15 years in prison and don’t want to be a victim again [and] I feel I can’t take going through that again but I don’t want to spend the rest of my life in prison. The way 1 see this is that you sentence me to the 15 years I won’t have to gamble with my life. I don’t want to gamble and getting a sentence under 15 years and having it overturned is a gamble I am not willing to take.
Your truly [sic]
[D.W.]
Letter of D.W. to the Court, July 6, 2015, EOF No. 74 (sealed, but now unsealed by this order) (emphasis added).
Defendant’s counsel reported that “the defendant has no desire to withdraw his guilty plea, and has consulted with counsel on this issue. The defense does not intend to press any issue concerning the guilty plea.” Letter from Def.’s Counsel, Nov. 19, 2015, ECF No. 93, at 1.
H. Evidentiary Hearings
Further evidentiary hearings were held on November 28, 2015, December 22, 2015, December 23, 2015, and February 3, 2016.
*48 1. Guilty Plea
At the start of the evidentiary hearings, the issue of defendant’s guilty plea was addressed. Defendant reaffirmed his plea, which was accepted by the court:
COURT: Now, is that your position, you do not wish to withdraw your plea of guilty?
DEFENDANT: Yes.
COURT: Have you discussed it thoroughly with your attorney? DEFENDANT: Yes.
COURT: And you know that the mandatory minimum is 15 years? DEFENDANT: I do.
COURT: Have you explained all the alternatives and why this might not be a wise decision from his point of view? [DEFENDANT’S COUNSEL, VON DORNUM]: Yes, Your Honor, I’ve reviewed the pros and the cons of each of the decisions with [D.W.].
COURT: Are you prepared to explain to the Court why you’re taking this position? Did you advise him that he must plead guilty or he should plead guilty?
VON DORNUM: I did not, Your Hon- or. I advised him as to what I saw in the evidence, the—
COURT: I don’t want the details. Do you want to tell me why you want to take this plea when you could plead not guilty and have a trial or work out perhaps some kind of arrangement with the government?
DEFENDANT: I’ve talked with my lawyers and, based on our discussions, I feel that I’m going to stand by my plea of guilty.
COURT: Well, can you explain that to me? Why?
VON DORNUM: Your Honor, my concern here is that we’re going to get behind the privilege and we’re going to breach the attorney-client privilege if he discloses that.
COURT: Well, he’s not going to breach the attorney-client privilege, but there may be an independent privilege, but I’m not aware of it. I have to approve the plea, do I not?
VON DORNUM: You do.
COURT: Well, I’d like to know. It seems a rather odd plea to plead guilty to a 15-year sentence when you might be able to work out something lower or even be acquitted.
VON DORNUM: Your Honor, we have not been able to work out anything lower with the government.
COURT: I understand. Because, in part, I suppose, the defendant insists on pleading guilty. Do you want to explain to the Court what your position is? Before you start, the second problem that the Court posed is whether the defendant is capable of making the necessary choices here, and as to that your position, as I understand from Court Exhibit 1, is that he is capable.
VON DORNUM: Correct, Your Hon- or.
COURT: And that no hearing is required with respect to his capacity?
VON DORNUM: Correct.
COURT: And the government has no contrary view, I take it?
[ASSISTANT UNITED STATES ATTORNEY, PAULSEN]: No, Your Honor.
COURT: That’s right, I stated your position?
PAULSEN: You did, Your Honor. You stated it accurately. We have no contrary view.
*49 COURT: Okay. What do you want to say, if anything? You’re not compelled to say anything.
DEFENDANT: I want to take responsibility for my actions and I don’t want to put my victims through anything more, re-victimizing them, making them relive everything over and over again by having to bring a trial. COURT: You’ve been in prison, haven’t you, before?
DEFENDANT: Yes, I have.
COURT: Fifteen years is an awfully long time.
DEFENDANT: I know.
COURT: Well, the Court does not generally approve of self-punitive acts of defendants of this nature. Its sentences are based on a number of criteria.
PAULSEN: Your Honor, if I may.
COURT: Yes.
PAULSEN: In July of this year, the defendant did file a letter under seal with Your Honor, a handwritten letter, in which he did outline some of the reasons why he believed a plea made sense for him.
COURT: How old are you now?
DEFENDANT: Twenty-seven.
COURT: How much time have you spent in prison?
DEFENDANT: I came in, I was 23, 24.
COURT: You’ve attempted to commit suicide a number of times, have you not?
DEFENDANT: Yes, I have.
COURT: And you’ve been raped in prison, have you not?
DEFENDANT: Yes, in state.
COURT: And you understand that those conditions and the crimes for which you are pleading guilty may well result in the department charged with incarceration keeping you in solitary confinement for your protection over a long period. Do you understand that?
DEFENDANT: Yes.
COURT: So that your incarceration may be very difficult. Do you understand that?
DEFENDANT: Yes, I do.
COURT: I cannot find any reason why I can reject this plea. Let me see Rule 11 again.
PAULSEN: Your Honor, we have it open in front of us. (Handing.)
COURT: Let me see the magistrate judge’s minutes, please. Do you understand the government can use any false statement against you?
DEFENDANT: I do.
COURT: You have the right to plead not guilty and to persist in that plea. Do you understand?
DEFENDANT: I do.
COURT: You have a right to a full jury trial. Do you understand that?
DEFENDANT: I do.
COURT: And at the jury trial, you have a right to counsel. Do you understand?
DEFENDANT: Yes.
COURT: You have the most distinguished counsel we have available for pro se or nonpaying clients in this court, and if you don’t like them we can appoint other counsel at any stage. Do you understand that?
DEFENDANT: I do.
COURT: You have the right to confront witnesses against you if you go to trial, to be protected from self-incrimination, compelled, to testify and to present evidence and to compel *50 the attendance of witnesses. Do you understand?
DEFENDANT: Yes.
COURT: You waive all those rights and a limited right to appeal. Do you understand?
DEFENDANT: I do.
COURT: And you’ve explained the nature of each charge, or had it explained to you?
DEFENDANT: Yes.
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COURT: Is your plea voluntary? DEFENDANT: Yes.
COURT: Did it result from force, threats or promises?
DEFENDANT: No.
COURT: I don’t believe I need to make a further inquiry on the factual basis.
VON DORNUM: No, Your Honor.
COURT: I have examined the material earlier, we’ve had an earlier hearing, and the report is comprehensive. The Court did not participate in any plea agreement discussions. ...
How do you plead to Count One, guilty or not guilty?
DEFENDANT: Guilty.
COURT: How do you plead to Count Two, guilty or not guilty?
DEFENDANT: Guilty.
COURT: I don’t see any basis for not accepting the plea. I think it’s unwise, but that’s for the defendant to decide. There’s no basis to reject it on the ground of lack of capacity.
Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 3:01-17:05.
Even though the court considered the plea “unwise,” it accepted defendant’s guilty plea. “It is the defendant’s, not the court’s, decision on this issue that should prevail in the absence of the most unusual circumstances.” United States v. C.B., 792 F.Supp.2d 343, 357 (E.D.N.Y.2011), vacated and remanded sub nom. United States v. Reingold, 731 F.3d 204 (2d Cir.2013).
2. Witness Testimony
The parties offered extensive testimony. They presented medical experts who testified about the risk posed by the defendant to the public, available treatment options, and the effect of a fifteen-year sentence on defendant’s likely risk of recidivism. See infra Part IV.D. Bureau of Prisons (“BOP” or “Bureau”) experts provided detailed information on the Bureau’s policies and practice with respect to the use of solitary confinement and the measures available to protect highly vulnerable inmates such as D.W. See infra Part IV.A-B.
Defendant also introduced the testimony of Jason Lydon, national director of the organization Black & Pink, who discussed his organization’s report on the experiences of incarcerated lesbian, gay, bisexual and transgender people (“LGBT”) in the United States. The proffered testimony of Galen Baughman, Open Society Foundation Soros Fellow with the Human Rights Defense Center in Washington, D.C., was not accepted by the court. Details are included below.
a) Medical Experts
(1) Dr. Naftali G. Berrill, Ph.D
The government introduced Dr. Naftali G. Berrill “as an expert in matters related to sex offenders, specifically, risk assessment and treatment.” Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 101:19-22. Currently, Dr. Berrill is a Forensic Psychologist and Executive Director of the New York Center for Neuropsychology and Forensic Behavioral Science, a private practice. His work comprises evaluating and treating convicted sex offenders, including individu *51 als charged and convicted of child molestation offenses. Id. at 98:11-100:02; Curriculum Vitae of N.G. Berrill, Ph.D., ECF No. 87-1, (“Berrill CV”) at 3, attached as App. 1 to Gov’t Witness List, Nov. 6, 2015, ECF No. 87.
Dr. Berrill holds a Ph.D. in clinical psychology from Vanderbilt University and a Master’s degree in clinical psychology from Long Island University. Berrill CV at 1; Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 96:23-97:01. Following his doctoral training, Dr. Berrill completed an ABA-approved clinical psychology internship at Sheppard Pratt Hospital in Maryland and a postdoctoral fellowship at Georgetown University Medical Center in neuropsy-chology. He is board certified in clinical psychology, neuropsychology and forensic psychology. Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 97:05-10. Before establishing a private practice, Dr. Berrill was the director and chief psychologist of a mental health services clinic in the Bronx Family Court. He also worked at Perkins Hospital, a maximum security forensic psychiatric setting in Maryland, where he treated violent offenders and sex offenders. Id. at 97:24-98:05.
Dr. Berrill’s testimony was not based on a direct examination of D.W. because defendant declined, on the advice of counsel, to speak with him. See Gov’t Witness List, Nov. 6, 2015, ECF No. 87. His testimony was instead predicated upon a review of relevant written materials, which included the PSR and FBI report in the instant case, D.W.’s State court proceedings, his criminal history report, and prior medical examinations. See Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 102:14-103:22; Gov’t Ex. 501 (Documents Reviewed by Dr. Berrill) at 50-62, 113-18, 203-08. Dr. Berrill also reviewed the report provided by Dr. Krueger. Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 103:23-104:03.
(2) Dr. Richard B. Krueger, M.D.
Dr. Richard Krueger was proffered by defendant as an “expert psychiatrist in evaluating paraphilic disorders, treating paraphilic disorders and making risk assessment of sexual offenders.” Id. at 9:21-24. His background and qualifications are set out at length in Part III.G.3, supra.
b) Bureau of Prisons (“BOP”) Experts
(1) Phillip Wise, former BOP Warden and Assistant Director
Mr. Phillip Wise was formerly a Warden and Assistant Director of the BOP. Currently, he works as a consultant on BOP operations. See Defi’s Ex. Q (Resume of Phillip Wise). His experience includes working with vulnerable inmate populations, as well as devising and implementing policies on the classification and management of inmates, particularly those suffering from mental illnesses. See Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 24:12-25:09.
Counsel for D.W. introduced him as an expert on BOP policies, procedures and programs, and on work with inmates with vulnerabilities. See id. at 21:19-22. Following a Daubert, Rule 702 Federal Rule of Evidence hearing, the witness was deemed “qualified as an expert on the issues he is expected to testify to by knowledge acquired through his profession, his experience, training and education and subsequent studies.” Id. at 27:22-28:02; see also id. at 28:04-14.
Mr. Wise testified about: (1) the assessment and designation of vulnerable inmates; (2) the risks posed to them from other inmates and staff; (3) specialized sex offender units; and (4) the use of protective custody. Defi’s Witness List, Nov. 6, 2015, ECF No. 86, at 2.
*52 (2)Patricia Rodman, BOP Associate Warden
The government introduced the testimony of Patricia Rodman as an expert on PREA compliance in BOP facilities. At the time of her testimony she held the position of Associate Warden of the MDC; she also was the PREA compliance manager for the facility. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 144:11-14. Ms. Rodman has since retired.
Her testimony addressed: (1) the ways in which BOP facilities meet the program requirements of PREA; (2) the specific PREA-relevant actions that were taken with regard to the defendant while he has been housed at the MDC; (3) the protections available to defendant while incarcerated; and (4) BOP use of protective custody and solitary confinement. See Gov’t Witness List, Nov. 6, 2015, ECF No. 87.
Ms. Rodman acknowledged that her testimony was limited to her experience at the MDC and at Schuylkill, a Federal Correctional Institution. Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 198:14-17 (“Q. So you are not competent here today to talk about violence against sex offenders in facilities outside of Schuylkill or the MDC? A. Correct.”).
(3)Brad Trate, BOP Correctional Services Administrator
The government also called Brad Trate, Correctional Services Administrator of the Correctional Programs Division of the BOP. See Gov’t Notice of Expert Witness, Dec. 30, 2015, ECF No. 103. In that role, Mr. Trate is in charge of developing training and “the correctional services of the Bureau of Prisons as a whole.” Hr’g Tr., Feb. 03, 2016, at 9:19-10:06 (“I set up training for correctional supervisors, lieutenants, captains. I do staffing analysis, compliment analysis, identifying how many correctional services officers, how many supervisors are appropriate for different security levels. I conduct training with those lieutenants, with those captains. I conduct training with regard to emergency preparedness, various issues. I teach associate wardens training, and I teach wardens’ training as well regarding security-related issues for the Bureau of Prisons.”).
Mr. Trate is also “responsible for the security of the Special Housing Units throughout the nation.” Id. at 10:19-11:17.
Mr. Trate testified on: (1) the use of SHUs, including for protective custody; (2) current BOP statistics regarding the use of SHU and protective custody; (3) the BOP’s implementation of PREA-related regulations; and (4) measures taken by BOP facilities to address the needs of potentially vulnerable inmates. See Gov’t Notice of Expert Witness, Dec. 30, 2015, ECF No. 103.
(4)Nelson Aponte, BOP former Associate Warden, Chief Correctional Supervisor and Special Investigative Agent
The defendant relied upon the testimony of Nelson Aponte, a former Associate Warden, Chief Correctional Supervisor, and Special Investigative Agent for the BOP. See Resume of Nelson Aponte, ECF No. 102-1, attached as App. 1 to Def.’s Notice of Expert Witness, Dec. 11,2015, ECF No. 102. He was qualified as an “expert on BOP practices and procedures, particularly, as applied to threats to inmates, investigations, and the use of protective measures.” Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 133:24-134:03.
After spending twenty-five years working for the BOP, Mr. Aponte currently is a consultant regarding federal, state and private correctional systems. See Def.’s Notice of Expert Witness, Dec. 11. 2015, ECF No. 102. As Special Investigative Agent and Supervisor he was responsible for investigating incidents, including threats, assaults, and allegations of sexual abuse. *53 Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 127:06-13. He made determinations of inmate need for protective custody and continuation of protective custody. Id. at 127:17-22. Mr. Aponte has also been involved in auditing the compliance of BOP institutions with BOP policies and procedures and applicable laws. Id. at 130:24-131:12.
His testimony focused on the effects of PREA, the use of protective custody ill federal prison, and the risks faced in prison by inmates convicted of sexual offenses involving children as well as available means of protecting them.
In its post-hearing brief, the government urged the court to disregard or discount Mr. Aponte’s testimony. See Gov’t Opp’n Post-Hr’g Mem. at 45-51. It argued that “Aponte was neither candid nor honest with the Court in his testimony about his post-BOP employment.” Id. at 48. The witness was asked about his demotion from his job with the Northeast Ohio Correctional Center, following allegations that he falsified documents. Mr. Aponte explained that he refused a demotion and resigned after he was adjudicated guilty of falsifying documents and after going through the appeals process. He testified that he did not remember what kinds of documents he was accused of falsifying. Id. at 49-50.
Mr. Aponte’s testimony in this case was redundant. His testimony is rejected. See Fed. R. Evid. 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons); Fed. R. Evid. 702 (Testimony by Expert Witnesses). The credible and reliable testimony of the remaining BOP experts—Mr. Wise, Ms. Rodman and Mr. Trate—is sufficient to aid the court in addressing the questions it posed to the parties.
c) Additional Witnesses (1) Jason Lydon
Jason Lydon, national director of the organization Black & Pink, was called by defendant as an expert witness on the experience of LGBT people in prison. See Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 104:08-10, 105:10-12. Black & Pink is “a nationally networked grassroots organization working with lesbian, gay, bisexual, transgender identified people who are currently incarcerated or affected by the criminal legal system.” Id. at 104:04-07.
In 2014, the organization published a report addressing the experiences of LGBT people who are incarcerated in the United States. See Def.’s Ex. D (Coming Out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey (“Black & Pink Report”)). The report was based on data collected through a survey sent to all of the organization’s subscribers—approximately 7,000 federal and State inmates. Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 107:05-18; see also id. at 110:12-18 (Mr. Lydon explained that survey respondents were “chosen through our membership, self-selected. They are LGBT individuals who are incarcerated in prisons. We reach prisons in every State across the U.S., and the respondents chose to answer the survey or not.”). About 1,200 responses were obtained, of which 1,100 were considered usable. Id. at 107:21-23.
While Black & Pink’s survey was stated to be “the largest ever survey of LGBT people in prison,” Mr. Lydon acknowledged that it “was not a random survey.” The respondents were not “representative or random,” and it was not a “complete” survey of LGBT incarcerated individuals. Id. at 111:06-16. Approximately seventy-nine people out of the total 1,100 respondents included in the survey—ie., about seven percent—were federal inmates. See id. at 121:12-14, 130:09-11. This represents *54 about 0.04 percent of all federal inmates (as of July 19, 2016, the BOP reported a total of 194,366 federal inmates, see Federal Bureau of Prisons, Statistics, https:// www.bop.gov/about/statistics/population_ statistics.jsp (last visited July 19, 2016)).
Prior to the hearing, the federal respondent data was sorted. See, e.g., Def.’s Ex. V (Excerpt from Black <& Pink Report: Federal Respondent Answers to Survey Questions 1, 5, 34), Ex. W (Excerpt from Black & Pink Report: Federal Respondent Answers to Survey Questions 70-76, 78-79, 81-84), Ex. X (Excerpt from Black & Pink Report: Federal Respondent Answers to Survey Question 77a), Ex. Y (Excerpt from Black & Pink Report: Federal Respondent Answers to Survey Question 86), Ex. Z (Excerpt from Black & Pink Report: Federal Respondent Answers to Survey Question 41a). Of these federal respondents, sixty-eight percent were gay or bisexual men. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 109:14-17. Nineteen percent reported being “physically assaulted, either hit, punched, kicked, or beaten by prison staff.” Id. at 112:08-10. Twenty-two percent stated they had experienced “unwanted touching by a prison staff person,” and six percent reported being sexually assaulted or raped by prison staff. Id. at 112:17-22. Thirty-two percent stated they had been intentionally placed by prison staff “where they might be at high risk of being sexually assaulted [by] another prisoner.” Id. at 113:01-04.
The survey was admitted into evidence, but with a finding that it did not meet scientific standards for such work. Id. at 112:01-02.
(2) Galen Baughman
Defendant sought to qualify Galen Baughman, Open Society Foundation So-ros Justice Fellow with the Human Rights Defense Center in Washington, D.C., as an expert witness on “prison conditions including assault, sexual abuse, rapes, and solitary confinement in federal and state prisons.” Hr’g Tr., Dec. 22, 2016, ECF No. 106, at 192:24-193:01. In his position, Mr. Baughman is a “policy analyst and advocate” who focuses “on the issue of indefinite detention at ... the federal and state [levels].” Id. at 183:19-26. Prior to his current position, he was incarcerated for nine years, of which four-and-a-half were spent .in solitary confinement. See id. at 191:08-09. Most of his time was served in State facilities in Virginia. Id. at 191:16-16. This personal experience motivated him to “be a voice for change to help improve public safety through changing the way we treated people through our system.” Id. at 191:09-13.
The government objected to Mr. Baugh-man as an expert witness. See id. at 193:22-194:22. His testimony was excluded. While Mr. Baughman “has extensive knowledge ... he doesn’t have the skill, experience, training or education to testify in a case under [Federal Rule of Evidence] 702.” Id. at 197:10-14 (statement of the court). His testimony as a fact witness was also precluded. See id. at 200:13-14 (finding that the proposed witness could not be qualified “by his personal history” since he never served in a federal prison); see also id. at 202:10-13 (“His knowledge is too narrow and it does not apply to the particular issues before us in the Federal Bureau of Prisons and the federal penitentiaries that we’re concerned about .... ”).
I. Amicus Curiae Briefs
Two amicus curiae briefs have been submitted with the consent of the parties and the court.
Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”), the National Center for Lesbian Rights (“NCLR”), the National Center for Transgender Equality *55 (“NOTE”), and the Sylvia Rivera Law Project (“SRLP”) have submitted a brief, in support of defendant, addressing the vulnerability of gay men generally, and the defendant in particular, to sexual abuse while in government custody. See Br. of Amid Curiae Lambda Legal, NCLR, NOTE, and SRLP, in Supp. of Def., Mar. 10, 2016, ECF No. 134.
The Washington Lawyers’ Committee for Civil Rights and Urban Affairs (“WLC”) has submitted a brief addressing the Bureau of Prisons’ “overuse of solitary confinement and its failure to properly diagnose and treat mentally ill men and women subjected to solitary confinement.” See Mem. of Amicus Curiae WLC, Mar. 10, 2016, ECF No. 135 (“WLC Amicus Curiae Mem.”), at 1.
Both briefs are included in the record. Non-parties Lambda Legal, NCLR, NCTE, SRLP and WLC were added to the case as amici. See Order, Mar. 11, 2016, ECF No. 136.
IY. Sentencing Considerations
The main question presented is whether this defendant must be sentenced to the applicable statutory minimum term of imprisonment of fifteen years; or whether such a sentence, as applied, would amount to cruel and unusual punishment in violation of the United States Constitution.
Prison conditions requested by the court to protect the defendant and the public would permit a fifteen year sentence of incarceration. See infra Parts V.D, VI and VII (conditions requested by the court to avoid an Eighth Amendment violation).
Defendant has been convicted of a serious crime; the sexual abuse of a minor. As recognized by this court, this category of defendants “frequently represent[s] the worst and most dangerous type of offender.” United States v. R.V., No. 14-CR-0316, 157 F.Supp.3d 207, 210 , 2016 WL 270257, at *2 (E.D.N.Y. Jan. 21, 2016).
Substantial punishment is warranted. First, and most importantly, the public needs to be protected against the possibility of any future acting out. Incapacitation might be necessary.
Yet, while defendant has been a sex abuser, he has lived most of his life as a victim. He requires medical treatment and protection. See supra Part II The past sexual abuse he himself has suffered, together with the fact that he is gay or bisexual, has a mental illness and is a convicted sex offender, make him a prime candidate for victimization in prison, unless adequate, appropriate precautions are taken. A sentence of fifteen years, without the protections suggested by the court, would likely be a condemnation to a decade and a half of unconstitutional physical, sexual, and psychological violence, as well as extended periods of debilitating solitary confinement.
Defendant’s reentry into the community is also of concern. As demonstrated following his release from State prison, without the support needed to readjust to society, defendant will continue to present a danger to himself and others. The effect that a prolonged period of incarceration is likely to have on defendant’s ability to reenter the community is vital in assessing the risks he probably will present to the public, and in devising an appropriate sentence and reentry conditions.
Ongoing medical and psychological treatment, including sex offender treatment, is needed. Assistance with housing and employment must be provided. Close and strict post-release supervision is imperative. Support from family and friends is crucial.
The court has addressed these issues in sentencing hearings with the extensive aid *56 of the parties and their experts. Three sentencing options were presented by the court for the parties’ and the experts’ consideration:
• A sentence of time served followed by a ten-year period of strict supervised release with immediate and intensive treatment;
• A sentence of about sixty months comprising: about two years of time already served in pretrial detention; an additional twenty-eight to thirty months at a detention facility like the Federal Medical Center in Devens, Massachusetts (“FMC Devens”), providing specialized sex offender treatment; six months in a halfway house; and a long period of strict supervised release; or
• A sentence of fifteen yeaijs to be served in the general population of a medium security prison, which would include credit for time served and allow for about twenty-eight months of treatment at an FMC Devens-type facility either at the beginning or end of the sentence; six months in a halfway house; and a long period of strict supervised release.
See Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 61:09-62:17.
Hearing testimony, documentary evidence, and memoranda were submitted. This section of the memorandum presents the evidence as it relates to the following sentencing concerns: (1) risk of harm to defendant while he is incarcerated (Part IV.A); (2) the BOP’s use of solitary confinement to protect and punish inmates (Part IV.B); (3) the BOP’s program for sex offenders (Part IV.C); (4) the possible risks posed by defendant to the public and relevant treatment options after release (Part IV.D); and (5) the resources available to defendant upon his reentry into the community to minimize the danger he poses to himself and others. (Part IV.E).
A. Risk of Harm to Defendant While in BOP Custody
The relevant BOP framework concerning the protection of vulnerable inmates and use of solitary confinement is set out below. The evidentiary record strongly indicates that the defendant in this case falls within a category of individuals exceptionally vulnerable to abuse while incarcerated. Due to his risk profile, it .is likely that D.W. would spend a substantial amount of time in solitary confinement, unless adequate precautions are taken by the BOP.
1. Designation to Medium or High Security Facility
While a sentencing court can make a recommendation to the BOP about where a defendant should serve his prison term, the recommendation is not binding on the Bureau. In imposing a prison term, therefore, the court cannot alone ensure that programs necessary to an appropriate sentence will be available to a defendant. In this case it believes cooperation from the BOP is likely. See infra Part VILA.
After sentencing, inmates are designated to a correctional facility by the BOP’s Designation and Sentence Computation Center (“DSCC”), “a centralized location where the vast majority of classification and designation decisions are made.” Alicia Vasquez & Todd Bussert, How Federal Prisoners are Placed, 31 Crim. Just. 19 ,20 (Spring 2016) (“Vasquez & Bussert”). The BOP utilizes “an objective classification system that’s determined by an individual’s security level .... ” Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 64:02-03 (Testimony of Mr. Wise). The five available security levels are “minimum, low, medium, high, or Administrative Max ....” Id. at 64:04. “An institution’s security level assignment is based on its level of staff supervision (inmate-to-staff ratio) and security meas *57 ures, such as external patrols, towers, perimeter barriers, and internal security.” Vasquez & Bussert at 19.
To determine the security level of an inmate, BOP officials focus mainly on the PSR prepared by the Probation Department. The determinative issues are whether the inmate is violent and whether the offense is a violent one. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 93:23-25 (Testimony of Mr. Wise). Once an inmate is assigned a security level, he or she is generally designated to a facility that is within that level. See id. at 64:02-08. Some factors may override the security level designation. For example, as a convicted sex offender, D.W. would not be eligible to be placed in camps—lower security facilities generally offering more programming opportunities for inmates. See id. at 64:09-16. Application of a public safety factor or a management variable may also affect an inmate’s placement:
The application of a [public safety factor], which is not confined to evidence of convictions, is intended to address information suggesting a need for greater security precautions. Examples include sentence length, removable alien status, sex offender status, and threat to a government official. Management variables are grounded in the “professional judgment of bureau staff’ and are used to effectuate an inmate’s placement at a facility inconsistent with the inmate’s scored security level. This most commonly occurs when an inmate poses either a greater or lesser security risk than his or her assigned security level denotes or to facilitate program ■ participation (e.g, permit completion of residential drug treatment despite a drop in security level).
Vasquez & Bussert at 21.
Also to be considered is the Judgment and Commitment Order—including any recommendation from the sentencing judge—and any applicable sentencing objectives. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 64:17-65:09 (Testimony of Mr. Wise). Ms. Rodman testified:
[Q.] Does the BOP also try to incorporate judicial input on these issues?
A. Yes, we do.
Q. How does that work?
A. The judge would put the recommendations on the actual Judgment and Commitment order.
Q. Okay. What kind of recommendations is the BOP receptive to receiving?
A. Programming or geographical location are ordinarily the ones that we get frequently.
Q. Can a judge also just highlight concerns he has?
A. Absolutely.
Id. at 179:02-13; see also Vasquez & Bus-sert at 20 (stating that “[t]he designation process begins when the case documents— the judgment and commitment order, the presentence report (PSR), and the marshals request for designation (USMS 129)—are uploaded to eDesignate and electronically transmitted to the [BOP’s Designation and Sentence Computation Center]” and noting “the critical role that the PSR plays in the designation process”).
Congress has directed the BOP to take into consideration any statement made by the sentencing court “concerning the purposes for which the sentence to imprisonment was determined to be warranted” or “recommending a type of penal or correctional facility as appropriate.” 18 U.S.C. § 3621 (b)(4). While judicial recommenda *58 tions are not binding, the Bureau strives to follow them where possible. Recent BOP data indicates that “the Bureau currently complies with 7k percent of recommendations, wholly or in part.” Yasquez & Bus-sert at 21 (emphasis added). Practical realities may sometimes limit the extent to which the BOP will implement a judge’s recommendation:
Although they are not binding, Congress has directed the BOP to account for judicial recommendations relative to placement and programming decisions. The Bureau strives to follow all judicial recommendations where possible, recognizing that they “are carefully thought out and are important to” sentencing courts. According to BOP data, the Bureau currently complies with 7k percent of recommendations, wholly or in part.
Recommendations are usually set forth in the judgment and commitment order’s imprisonment section. ... Courts may wish to frame recommendations in terms of the reasons underlying them.
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Despite best efforts, the Bureau may be unable to follow courts’ recommendations due to conflict with policy or sound correctional management. Reasons for not meeting recommendations vary. For one, a recommendation may be for placement at an institution that is not commensurate with an offender’s security level (e.g., to a low security prison where the offender qualifies for medium security) or at [an] institution without capacity to accept additional inmates at the time of designation. There may also be security considerations, such as separatee issues (avoiding placement of an offender with a codefendant against whom he or she cooperated, or vice versa) or efforts to balance populations of known gang members through the system. Finally, a recommended program may not be offered at the institution recommended ....
Id. (emphasis added).
This description of the Bureau’s attempts to comply with judicial recommendations was confirmed by Mr. Wise at the evidentiary hearing:
Q. What role does that recommendation, or what weight [is] that recommendation given in the Bureau’s designation?
A. It’s been my experience it’s always considered. They’ll look at that and they’ll consider it. If it’s within the realm of policy, their existing policy, if it’s an appropriate designation, they’ll try to satisfy that recommendation, but if it’s outside their policy, their classification system, they generally won’t follow the recommendation.
Q. And are there other reasons why, in individual cases, a judge’s recommendation is not followed?
A. Sure. It could be population pressures, there may be no beds available at a particular facility, or it may be overcrowded ....
There may be some overriding issues that would mandate a different kind of placement; for example, the Court might recommend a particular correctional facility, but the individual has medical problems that can’t be addressed at that facility and has to go to a different kind for mental health problems.
So there are other reasons for not following a judicial recommendation besides just that it’s outside the custody level or security level ....
*59 Hr’g Tr., Nov. 23, 2015, ECF No.101, at 65:10-66:07 (emphasis added).
Determinations as to which inmates will be housed in one of the BOP’s nine Sex Offender Management Programs (see infra Part IY.C.l) are also made by the BOP through its DSCC unit. Access to intensive resident Sex Offender Treatment Programs is usually limited to the last three years of an offender’s sentence, and participation is voluntary:
[Cjourts need not recommend sex offender treatment or placement in one of the Bureau’s nine sex offender management programs (SOMPs). Inmate participation in

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7239213. Public record. Not legal advice.