Wairi, teacher who had child pornography, gets 12 years in prison via guideline math
Josh Wairi was sentenced to 12 years in prison with eight years of supervised release on Monday afternoon by Judge William G. Young in Massachusetts federal district court. Wairi was convicted in May of possessing and transporting child pornography. He was acquitted of the more serious count of production of child pornography, which resulted from his filming videos of students showering on a school field trip and recording videos in a school pool locker room.
Wairi was a fifth-grade teacher at Cambridge’s Graham & Parks School until his arrest in April 2014; previously he had taught at Somerville’s Healey school.
“The sentence is certainly at the higher end of a reasonable sentence range,” defense attorney J.W. Carney said. “It was obvious that the judge gave it a lot of thought before he took the bench.”
The sentence was middle-of-the-road for Wairi. His defense lawyers asked the judge to sentence him to the legal minimum of five years imprisonment, but the prosecutors asked that he be sentenced to 15 years and eight months. Both sides suggested 10 years of supervised release. Wairi will serve his prison sentence in a facility with special treatment programs for child pornography offenders.
Wairi also received credit for the time he has served in jail since his arrest; he will be due for release in April 2026. Young made reference to a substantial list of conditions that would apply during the eight years of supervised release, but those conditions have not yet been made public. Young said it “has to be the longest list of conditions for any defendant.”
Furthermore, after Wairi is released, he could be subject to “civil commitment” if his doctors do not believe he is ready for release, Carney told the court. If a psychiatrist determines Wairi has a mental illness and is unable to control his conduct, Carney said, “he will be committed to a minimum of one day to a maximum of the rest of his life, and they will not let him out until he shows he warrants it.” If he remains in Massachusetts, Carney said, he would undoubtedly be determined to be a Level 3 sex offender, the most serious level.
Young sentenced Wairi by following the guidelines issued by the U.S. Sentencing Commission, a 600-page complex system of detailed textual rules and numerical tables; Young did not depart from the guidelines range. The sentencing guidelines dictate a “base offense” at Level 22 for the crimes Wairi was convicted of, then offer a series of potential “enhancements and adjustments” based on the particulars. The debate between the defense and the prosecution was essentially over which enhancements were applicable. Both sides submitted lengthy written arguments for their position, and the court heard oral argument for nearly an hour.
For a first-time offender such as Wairi, Level 22 results in five years of prison, but Level 36 corresponds to 15 to 20 years. The prosecution calculated 14 levels of enhancement that lead to their recommendation. Wairi’s ultimate level calculated by Young was 33, corresponding to 11 to 14 years of prison.
The government argued unsuccessfully that Wairi did not accept responsibility for his actions; accepting responsibility would merit a three-level reduction in his sentencing level. Carney convinced the judge that Wairi did accept responsibility, and emphasized that Wairi had wished to plead guilty to the possession and transportation charges, and the case went to trial only because the government insisted on pursuing the charge of production of child pornography – the charge Wairi was acquitted of. Assistant U.S. Attorney Suzanne Sullivan Jacobus argued Wairi tried to “minimize his criminal conduct,” such as by saying telling the arresting officers in an interview that he had “hundreds” of images of child pornography when he actually had 26,000.
Carney was less persuasive with respect to three other enhancements the government asked for: two levels for images of prepubescent minors, two levels for use of a computer, five levels for more than 600 images and five levels for “distribution in exchange for a thing of value.” Those four enhancements raised Wairi’s sentencing level to 36 from 22, but it was lowered to 33 by an acceptance-of-responsibility adjustment.
Carney argued that enhancements that apply to most offenders are inappropriate, and that because 96.3 percent of child pornography offenders possess images of children under the age of 12, the enhancement should not apply. He offered similar arguments against the “exchange for a thing of value” and use-of-computer enhancements, noting that the U.S. Department of Justice has said “the enhancement for the use of a computer … is no longer useful and should be eliminated.”
Jacobus pushed Young hard on the enhancements, arguing vigorously that because Wairi began viewing child pornography at age 12, he has engaged in this behavior for more than half his life. Jacobus also emphasized that possession and distribution of child pornography are not “victimless crimes.” Child pornography, Jacobus said, “fuels a market very rich in exploitation of children, and thereby leads to further production” of child pornography.
Jacobus said that 125 of the victims had been identified in a national database, relayed the story of one of them:
“I know that my image is being downloaded by these kiddy porn perverts. I worry that they know who I am. I worry they will come and look for me and my family. I’ve changed my appearance so they can’t find me, but I still have panic attacks when I think someone is looking at me from images on the Internet. I have difficulty working because of anxiety.”
Young agreed, calling Wairi’s crimes “a most hideous form of child abuse.” Young said that “We have made a mistake in our language in calling it child pornography. It is not. It is child obscenity. It is the visual depiction of actual children actually being abused, in the most vile disgusting and abusive ways. It is an extraordinarily serious crime.”
But Young also praised the defense’s strategy at trial, saying it was “nothing short of brilliant.” Ultimately Young’s sentence of 144 months was a little more than a quarter of the way between the 135-month minimum and the 165-month maximum specified by guidelines, given the calculated offense level of 33.