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July 17, 2009

Potent response to DOJ account of federal child porn sentencing

I noted last week in this post that the Department of Justice had produced this extended response to this ABA Journal articleon the debate over federal child porn sentencing.  One target of the DOJ response was Federal Public Defender Troy Stabenow, who wrote this very influential analysis of the federal child porn sentencing guidelines. 

Troy has written a response to the ABA Journalconcerning the DOJ account of the child porn guidelines, which asserts that the DOJ document makes a "straw-man argument [that] misrepresents the issue, grossly distorting my position into one that I would never make, let alone support."  Troy's full letter can be downloaded below, and here are excerpts:

The debate within our system is not whether to prosecute, it is generally how many decades of prison time an offender will serve. The DOJ may hope that by misrepresenting my argument, and citing extreme cases as the norm, this debate will go away.  But, the only reason the DOJ responded so swiftly to Mr. Hansen's piece was that the ABA Journal touched a nerve rubbed raw by repeated criticism from judges, commissioners, scholars, officials, and concerned members of the public.  I trust that anyone who takes the time to read my article will, at the very least, be troubled by the process behind the system.

As a parent, a citizen, and a long-time prosecutor for the U.S. Army (Reserves), I have consistently supported appropriate prosecutions and sentences for child pornographers as a path towards fighting child abuse.  I simultaneously support the proposition that American justice requires sentences based on empirical research and study, not fear-mongering and hysteria.  Support for considered sentencing does not equate to the endorsement of child exploitation, no matter how much certain officials might like to paint the issue that way.  Child pornography is an emotional issue, and for that reason, the political whims of certain activists and politicians were indulged to a greater extent in the creation of this guideline than in any other.  A review of the Sentencing Guidelines reveals absurd differences -- lower punishments for people who attempted to engage children in sex acts than for those who only possessed and swapped pictures.  On a broader level, the obvious irrationality of this guideline allows the public an inner-look at the mechanisms behind our entire federal sentencing structure.  The understandable zeal with which officials try to protect children leads some to paint any criticism of the sentencing system as an assault on the safety of our children.  Support for considered sentencing however does not equate to the endorsement of child exploitation, no matter how much certain officials might like to paint the issue that way.  Their argument presumes that we can use the fact of looking at pictures as a proxy for knowing that these defendants are molesters.  Their argument also presumes that we can only protect our children by using secret, manipulated sentencing rules.  I do not agree with either assumption.  We don't have to accept an ends-justify-the-means system. We can fashion a system that protects our children, punishes people for what they have done and upholds our American ideals of fair, transparent justice.  

Download Stabenow letter to ABA

Some related federal child porn prosecution and sentencing posts:

July 17, 2009 at 09:41 AM | Permalink

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Study finds no link between child porn and sex abuse

From correspondents in Paris | July 14, 2009

MEN without a prior sex conviction who look at child pornography on the internet are unlikely to sexually assault a child, according to Swiss scientists.

Posted by: Anon | Jul 17, 2009 10:10:13 AM

Anon--Thanks for the article. I know that the older studies supposedly linking viewing adult pornography to sexual violence were flawed at best and junk science at worst...I assumed the same was true of child pornography, but I didn't know of any studies to prove it.

Posted by: Res ipsa | Jul 17, 2009 1:53:40 PM

Stabenow is a wise, brave dude.

Posted by: John K | Jul 18, 2009 11:08:26 AM

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