The Air Force Court of Criminal Appeals has reduced the sentence of a former Ramstein Air Base staff sergeant who advertised babysitting services to gain access to three young girls he repeatedly sexually assaulted, crimes that shocked the Kaiserslautern community and had condemned the airman to life in prison with no possibility of parole.
Staff Sgt. Joshua A. Smith's sentence was reduced to life by the appellate court in a decision earlier this month. The decision means that Smith, 30, would be eligible for parole after a decade or more. The appellate judges, in their written opinion, said that despite the heinousness of Smith's crimes against the girls -- ages 3, 4 and 7 -- the sentence handed down in November 2010 by military judge Col. Dawn R. Eflein and approved by the Third Air Force commander was "unduly severe."
"In making this determination, we are not engaging in an act of clemency; rather, we are fulfilling our duty under Article 66(c), UCMJ, to maintain uniformity and even-handedness of court-martial sentencing decisions," the opinion said. "Our decision is not made lightly and was the product of considerable reflection, discussion and debate."
Smith sexually assaulted the three girls -- two military dependents and a German girl -- from November 2009 to April 2010 while he babysat them at his house or theirs. His acts included instances of penetrating the girls' genitals, aggravated sexual contact, indecent liberties, and the manufacturing, possession, and viewing of child pornography.
He was arrested after the 7-year-old told her parents that she had seen the appellant's penis while he was reading her a Bible story and that he had taken naked pictures of her.
Smith had advertised babysitting services in Ramstein's internet classified advertisements, lying about his qualifications and claiming he was "the father of a wonderful 3 year old son" and an eight-month old. To further lure parents to entrust their children to him, he posed online as a reference named Yvonne.
Smith pleaded guilty to the charges against him and told Eflein that he deserved a sentence of life in prison. In a written statement he claimed that he hated himself for hurting the girls. "I guess I'm glad I got caught now, maybe I can get some help," he wrote.
Eflein deliberated for an hour before sentencing Smith to confinement for life without parole, and a month later Lt. Gen. Frank Gorenc, the Third Air Force commander, denied clemency and approved the sentence.
But the appellate court noted mitigating factors that should have been taken into account. Smith pleaded guilty, which spared the girls and their families from going through a trial, he acknowledged the seriousness of his crimes and expressed great remorse, the opinion said. In addition, the court noted that forensic psychologist Rex Frank, after reviewing the case and assessing Smith over three days, had concluded that Smith's risk of reoffending was "very low" compared to other sex offenders and that he had "excellent rehabilitative potential."
"In over 300 evaluations of military sex offenders in 32 years as a military psychologist and in private practice, I have found no offender with a lower risk of recidivism," the psychologist wrote in a post-trial submission.
Smith was the only Air Force member to have ever drawn a sentence of life without parole. Nineteen other servicemembers had received LWOP sentences, 18 men and one women. All but one other had been convicted of murder.
A sentence of life without parole is an authorized punishment for rape of a child under the age of 12, the Court of Appeals for the Armed Forces, the highest military court, has previously ruled.
"However, we are also mindful that such a sentence is a severe punishment and should not be approved lightly," the Air Force appellate court opinion said.
"(B)ased on our collective experiences as judge advocates and appellate judges and taking into account the principles of sentencing, the matters in aggravation as balanced by the matters in mitigation, to include the appellant's guilty plea and the unrebutted opinion of (Frank) concerning the appellant's high degree of rehabilitative potential, we conclude that the appellant's sentence to LWOP is unduly severe," the appellate judges wrote.
A life sentence comes with the possibility of parole after an inmate serves 10 years, although experts say parole is very rarely granted the first time it's requested.
Life without parole sentences require an inmate to serve 20 years before petitioning for clemency and a reduced sentence. If that were granted, such inmates could then ask for parole. No service members sentenced to LWOP have yet served 20 years.