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September 13, 2009

"Disproportionate Sentencing for Possession of Child Pornography: Witchcraft Trials of the Modern Age?"

The title of this post is the title of this notable student note by Jesse Basbaum that I just noticed on SSRN.  Here is the abstract:

This Note identifies several infirmities of United States Sentencing Guideline section 2G2.2, the sentencing scheme for possession of child pornography.  The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (1) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors of child pornography.  In this Note, I will argue that the Sentencing Commission should amend the guidelines for possession of child pornography because, (1) the guidelines are the result of 'morality earmarks' rather than the product of empirical or academic study; (2) the empirical evidence calls into question the asserted link between possession of child pornography and future sexual assaults of children; and (3) by failing to consider the nature of internet downloading, most of the 'enhancements' are actually part of the core offense of possession. Several federal district courts have cited these and other deficiencies in their decisions to sentence defendants below applicable guideline ranges. Though the Supreme Court’s recent decisions in Rita and Kimbrough permit trial courts to disregard sentencing guidelines that lack empirical basis, most courts still rely heavily on the guidelines to impose lengthy sentences.  Accordingly, I propose that the Sentencing Commission amend section 2G2.2 in a manner that reflects the tenuous connection between possession and contact offenses, and in light of the realities of Internet use.

Some related federal child porn prosecution and sentencing posts:

September 13, 2009 at 05:46 PM | Permalink

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Comments

I am going to guess Jesse is a female law student. What she fails to say is, the hunt is on for the productive male. Feminist lawyering and feminist made up law serves the aims of the criminal cult enterprise, in providing a host of pretext for their confiscatory business plan. If possession of child porn picture promotes child abuse, how does possession of adult porn not promote prostitution?

Feminism is a biased hate speech group. It is similar in structure and content to white supremacy. This group did that to us. That group did this to us. These offenses justify all oppressions we plan for them. They scapegoat groups, and make it acceptable to bring false, pretextual charges, to excuse the confiscation of their assets.

Posted by: Supremacy Claus | Sep 13, 2009 8:13:51 PM

I couldn't agree more with SC. I've tried to figure out why penalties against men for things that used to be considered "undesirable" by many, have now been turned into crimes with sentences of 20, 30 and life sentences. Why the sex register, when other crimes are not on there. I know there is "tough on crime" but men have been targeted to such a greater proportion. I had come to the conclusion that it is the radical feminists who have done this. They hate men, they don't respect other women who like men, and I even believe, they only approve of gay men. I can't understand why somebody doesn't see this and stop them.

Posted by: DLJ | Sep 13, 2009 9:31:04 PM

DLJ: The feminists lawyers serve the rent seeking, confiscatory business plan of the hierarchy of the criminal cult enterprise that is the lawyer profession. Until they are physically stopped, they control the three branches of government, and will never give up the $trillion they make nor the 99% power they have over our government.

This is not a conspiracy theory. This is a criminal cult enterprise theory, where 1.3 million lawyers are indoctrinated into 1) supernatural doctrines from a church; 2) allegiance and obedience to the hierarchy above all others; 3) enforced by draconian professional responsibility enforcement, with no outside recourse. A cosmetologist loses a license, she may go to court if treated unfairly. The lawyer has no such recourse. The lawyer is doubly oppressed as the public. The ordinary judge is triply so.

There are only 15,000. They can be arrested, given an hour's fair trial and executed for insurrection against the Constitution within weeks. This will happen after the next major terrorist attack on our nation, enabled by the immunity and encouragement of these insurrectionists. It is a shame it cannot happen before a nuclear device is set off, after being sold by North Korea, and allowed by the lawyer in the White House. He will be swept away, along with the 15,000.

Here is the risk. 1776. That rare flower of Athens may also be swept away. You and I may not want to live in the resulting nation. This hierarchy is execrable, risking our civilization for their enrichment and empowerment.

Posted by: Supremacy Claus | Sep 13, 2009 10:33:11 PM

I largely agree with the proposition that child pr0n sentences are overharsh for most "non-contact" offenders. I can't help but wonder, though, if the outrage about these sentences among the legal/legal-academic community doesn't have a bit to do with it being somewhat easier to identify with these defendants than, say, drug mules caught smuggling 5 kilos from Houston to Chicago.
No, I don't mean that most, or a substantially minority, of lawyers or law professors look at child pr0n. I do think, though, that most males with internet access have looked at some sort of porn at some point; some (obviously) more often than others. I can't be the only person to whom it's ever occurred, when reading about one of these pathetic defendants in horribly sad situations: hey, how do I know I've never seen a picture of a 16 or 17 year old girl online? How much better would I fare in prison for six years than these losers who get caught? Yes, I realize that the people who get prosecuted were rarely looking at 17 year olds, and I imagine that close to none of them got what was on their computer by "accident."
In the opposite direction, though, I do think it is silly for advocates of more lenient sentences to refer to these prosecution as "witchcraft trials." Withcraft is entirely imaginary; the sexual abuse of children isn't. While there is certainly some hysteria involved in these prosecutions, I doubt it's helpful to the cause to make claims that imply the defendants are entirely blameless and being prosecuted entirely out of societal paranoia.

Posted by: anon | Sep 14, 2009 1:43:26 AM

Hey moron - if you would correctly input the URL of your blog, you could confine your ridculous "observations" to it. You could even engage yourself in pretend conversations in the comments, just like you do here. That way people could ignore it over there instead of over here, and I would not have to glaze over so much of your garbage every time I look at the comments section. Do you think you could do that, or are you too convinced that everyone here really needs what you're selling? Because in that case, you would be the only one.

Posted by: Gray Proctor | Sep 14, 2009 10:17:29 AM

anon. I disagree. I think that the harm done to children by looking at child porn is imaginary. It's identical to witchcraft trials in that sense. Child sexual abuse is a real harm. But the overwhelming majority of cases are not against people who commit these acts but against people who look at them after the fact. The idea that the photos re-victimize the child is hogwash. We don't hold that to be true for any other crime scene photo so what makes child porn different. The claim that the consumption of child porn increase the demand for child porn production is also without any merit whatsoever. It totally misunderstands the motives of people who make child porn and is a claim not supported by any evidence. Finally, one is left with the reality that even in other countries such England the normal sentence for a first time offender is six months in prison, not six or sixty years.

I actually think that Witchcraft trials is the exact and specific and appropriate analogy. We are punishing imaginary crimes for reasons that are both illogical and morally wrong.

Posted by: Daniel | Sep 14, 2009 11:15:47 AM

The first and third of his points are the strongest. It is obviously hogwash that each viewing re-victimizes the child. And it is at least dubious, if not downright ridiculous, that viewing leads to contact offenses. To the extent the Guidelines rely on these claims, they are erroneous.

Posted by: Marc Shepherd | Sep 14, 2009 4:05:47 PM

I buy a leather wallet made by forced child labor in another country. Should I be imprisoned for enslaving those children? Only a feminist lawyer would say, yes, and only if I am a male.

Posted by: Supremacy Claus | Sep 14, 2009 5:09:03 PM

The lawyer hierarchy is mostly male. It has no principle, and believes in nothing, except itself. It uses feminist doctrine as a pretext to further the rent.

I would like to see innocent defendants really strike back until it hurts. Start small. Total e-discovery on the federal thugs and on the judge. It should include social networks back to kindergarten. No computer has a greater likelihood of containing child porn than a federal computer. Demand the prosecutor be prosecuted, especially if female. If the slightest feminist utterance is found in any file, demand disqualification, a mistrial, and all legal costs to the personal assets of the federal thug. Feminist utterances show an improper motive until proven otherwise. To deter.

Posted by: Supremacy Claus | Sep 14, 2009 7:10:48 PM

I am a student at UC Hastings and found this note to be very thought provoking and well written. Also, sorry to disappoint, but as Jesse's classmate I can confirm that he is not a female law student.

Posted by: JLC | Sep 15, 2009 12:50:48 AM

Dear Supremacy Claus,

I was wondering, what do you call the fantasy world in which you live? Really - maybe someday I'd like to visit this place, because then, as a woman, I might actually experience what it's like to hold some real power in American politics. Feminism controls this country? This is news to me.

I just wanted to quickly comment on the "solution" you propose in your last post:

"If the slightest feminist utterance is found in any file, demand disqualification, a mistrial, and all legal costs to the personal assets of the federal thug. Feminist utterances show an improper motive until proven otherwise. To deter."

Such a recommendation creates a government of oppression and tyranny that is completely contrary to the spirit and the letter of our country's consitution, not to mention tantamount to the state of American government as you see it now. But, best of all, the action you recommend is IDENTICAL to the so-called feminist conspiracy law you abhor! Find one modicum of feminist thought and throw the book at 'em. And yet, isn't this the same as the excessive child pornography laws you deem aimed at destroying the "productive male"?

Oh, but I do commiserate with the sorry plight of the modern American male you so vividly illustrate. You are so oppressed. Everything you work for is taken away as you are relegated to a lesser position in society.

Right.

As Jesse's classmate, I'd like to extend my heartiest congratulations. I would consider myself very lucky if I garnered such responses to my work.

Posted by: KLM | Sep 15, 2009 1:50:49 AM

The lawyer is not a real friend of women. Most feminist lawyers are criminal lover lawyers at the same time. The lawyer allows 5 million violent felonies (a 40% drop from pre-guideline rates, to be increased again to generate lawyer jobs). By protecting violent offenders, the profession knowingly allows the violent rapes of 100,000 women a year. So, the lawyer uses feminism to generate lawyer job, while leaving average females unprotected from assaults. Prosecute the downloader of a picture. Allow 100,000 rapes a year.

By not pointing to the feminist aspect of this lawyer gotcha, it is hidden. This is a type of lie by omission and a cover up of the origins of these lawyer rampages. [The prosecution of female teachers for sex with teenage boys is a phony display to show even handedness and to pretend to be virtuous. There is no harm in those liaisons, only total delight and lifetime fond memories. These are ridiculous to the ordinary person. These ridiculous displays are an attempt to show false virtue and fairness.]

Feminism is one of many masking ideologies used by the lawyer hierarchy in its confiscatory, rent seeking business plan. Feminism generates lawyer business, despite being a hate ideology. So its tenets are being temporarily used to justify outlandish penalties. For example, the proper remedy of sexual harassment is a smart slap to the face of the piggish offender. Instead you get ruinous litigation that does not even name the pig. It generates lots of lawyer plaintiff and defense jobs, which is the real aim, and plunders productive male run businesses. These suits are really a remedy for lawyer unemployment. Since these suits have started, the incidence of sex acts at work has exploded. The lawyer is ridiculous.

Hundred years ago, the KKK, a lawyer founded and run fraternal organization, lynched rich blacks and Jews (did any lawyer here know that the lynchings were of rich people and that lawyers took their assets with impunity?). The judges, the prosecutors gave the KKK immunity for 1000's of extra-judicial murders, depicted in postcards with large crowds in front of swaying bodies.

Feminism is just another hate filled masking ideology on a long historic list, used to further the rent seeking agenda of the hierarchy of criminal cult enterprise. It has less support than did the KKK, and will last fewer years. Next will come offenses against animals, then down the list of phyla.

The lawyer profession is ridiculous, except it controls the three branches of government. It imposes its ridiculous doctrines at the point of a gun.

Posted by: Supremacy Claus | Sep 15, 2009 3:24:03 AM

Sometime in the near future a very clever inmate or person with a grudge on this issue will figure out a way to infect thousands of computers fwith child porn images. Those computers will be owned by law enforement people and congressmen. And when these schmucks take their computers in to some shop for service, the porn images will be found and then the perps reported for possession. Then it will be they, the self righteous, who have to argue that they did not know it was there; that it was not in their possession and control; that it was really a virtual image not a real kid; that it looked like an 18 year old; that the dog did it.

Posted by: mpb | Sep 15, 2009 3:47:07 AM

Already done. Experts have had to prove these images were Trojan horses and the defendant was released after undergoing the ordeal of arrest, trial, and a thoroughly ruined life.

From 2003. See the obvious vile feminist oppressor, family destroying angle.

http://news.zdnet.co.uk/security/0,1000000189,39115422,00.htm

The prosecutor should lose immunity from ordinary torts, be made to apologize, and to compensate the victims of false and incompetent prosecutions. The Supreme Court of the US has granted these pirates absolute tort immunity. This unconscionable lawyer self dealing by the hierarchy of the criminal cult enterprise morally justifies self help and street justice.

In the case of e-discovery of the Federal thug, such expert analysis is unnecessary. The Federal government is the biggest subscriber and open downloader of child porn. In its zeal, the government is likely the biggest single funder of the production of child porn.

That is why I have suggested that the innocent defendant hire a second attorney to terrorize his defense attorney into demanding e-discovery of the work and personal computers of the prosecution, all the way up the line of supervision. Once these images are found, demand a mistrial, sanctions, and all costs from the personal assets of the federal lawyers. If the judge refuses, demand e-discovery of the computers of the judge, searching for bias.

To my knowledge, no one has made these obvious demands. Why? It would deter the prosecution, the real source of the defense bar jobs. Why did defense attorneys get upset by that idea at a party for Obama that I attended? Because they would lose their jobs if the prosecution stopped filing weak cases.

Posted by: Supremacy Claus | Sep 15, 2009 6:52:31 AM

KLM: I didn't say females held power in the legal world. I said, feminism was used as a masking ideology to promote the business plan of the lawyer hierarchy. This is the same method used when Southern racial disgruntlement was used by the KKK, a lawyer founded and led fraternal organization, to lynch rich folks, and take their houses and assets. I contrasted this hypocrisy with the forbearance of the lawyer for 100,000 violent rapes a year by the lawyer client, fully protected from substantive punishment. Why protect low life rapists from execution, severe corporal punishment and castration? Because those would work, and decrease lawyer criminal law jobs. Even mild guidelines dropped victimization rates by 40%. The likes of Scalia panicked, and led the assault on the guidelines. Rent seeking trumps all ideology and political belief.

Posted by: Supremacy Claus | Sep 15, 2009 6:58:29 AM

The sentiment of this abstract is agreeable, but one hopes the research of the final paper into the genesis of 2G2.2 is better than the premises exhibited in this summary.

It seems that the author doesn't point out that much of the guideline being referenced was not written by the Commission, after empirical study or otherwise, but by Congress. The Congressional directive in this case specifically spelled out items such as the image chart in detail. One hopes that if the student in question wanted to attack the genesis of this guideline he has conducted a sufficient legislative history - and compared this scenario to the usual guideline amendment process to note the differences.

Second, the reason "use of a computer" is a specific offense characteristic rather than part of the base offense level is to keep the sentences LOWER. The base offense level, without any SOC's, will not render a sentence at or above the five year mandatory in criminal history category one. This is a key point to understanding why the enhancements are they way they are. As anyone who bothers to investigate a teensy bit would know, nearly all child porn defendants are CHC 1. Since use of a computer is going to occur almost all of the time, since depictions of under 12's are going to happen most of the time, since sado/masc images is common, you satisfy specific Congressional directives to the Commission to consider these factors as enhancements and then set the base offense level below the mandatory so that when they all apply you are just at the mandatory.

The Commission, despite the broadsides of student writers (and professors), has some idea of what they are doing. In the very least, the Commissioners are aware of who drives these sentences - and it ain't the Commission. The student's paper would be much more effective if he notes this most salient fact instead of simply beating the Commission for Congress' sins.

Posted by: Ferris Bueller | Sep 16, 2009 9:35:15 AM

The justice system is a joke

they need to wake up and realize that these charges aren't even close to being as bad as murder/rape/molestation so why ? why do they hand out the same lengthy sentences?

Makes you realize how chaotic life really is in the end.

Posted by: dissapointedaboutit | Sep 25, 2009 1:39:50 AM

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