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March 16, 2010

New academic piece discussing child porn sentencing in an internet age

Professor Jelani Jefferson Exum has this notable new piece up on SSRN under the title "Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses."  Here is the abstract:

Sexual exploitation of children is a real and disturbing problem.  However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has its problem as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame.  At the heart of this Article are the forgotten players in the discussion – the computer and the internet – and their role in changing the realities of child pornography possession.  This Article argues that the computer and internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images.  However, little attention has been paid to the effect computer behavior and the internet have on the actual manner in which offenders possess child pornography and little thought given to what punishment is warranted given the characteristics of that possession. While some district judges are thinking about these issues when they sentence, they have little guidance from experts in the fields of punishment and sexual crimes because sentencing guidance provided to judges has largely been restricted to the Federal Sentencing Guidelines. Unfortunately, in promulgating Guidelines for child pornography possession offenses, the United States Sentencing Commission has largely treated child pornography possession offenses as traditional possession crimes, and has been increasingly influenced by Congress’ response to political pressure to severely punish such offenders without regard to the stated purposes of punishment.  Now that the Guidelines are no longer mandatory, many judges are forgoing the Guidelines’ advice when it comes to sentencing the possessors of child pornography and forging out on their own. Critics say that those judges are being too lenient. While there may be truth to that argument, what is even more apparent is that judges are ill-equipped to respond to the punishment needs of this group of offenders, critics of lenient sentences are discounting the faults in the Guidelines, and the computer and internet have been causing all of the controversy without being a big part of the discussion.  A system reboot is in order.

This Article recognizes that child pornography possessors should be punished for the harm and danger that the offense creates and the exploitation that the offense represents.  Ultimately, though, this Article argues that any enhancements to child pornography possession sentences should reflect aspects of the offense that actually make the offender more harmful than the typical child pornography possessor.  To make this argument, the Article will introduce the genuine problem of the sexual exploitation of children that this country faces.  It will explain the specific federal crime of child pornography possession and the methods taken to commit the crime.  Further, the Article discusses the sentencing of child pornography possessors, explaining the current Federal Sentencing Guidelines approach, the rebellion of district judges against the Guidelines’ advisory sentencing ranges, as well as the criticism levied at those judges.  After exposing the system failure that requires a rebooting of the sentencing approach, the Article proposes a new manner of thinking about child pornography possession as a computer crime that is very different from ordinary possession crimes.  This new approach seeks to understand the internet and computer in order to develop a system of punishment that will at least move toward achieving the congressionally-identified goals of punishment. Ultimately, it is not the purpose of this article to suggest an appropriate range of sentences for child pornography possession; nor is the goal necessarily to have the Guidelines ranges for child pornography possessors reduced.  Rather, this Article emphasizes that finding a method of giving meaningful guidance to district judges in order to appropriately punish child pornography possessors is necessary, and that this is impossible to do without making the punishment fit the realities of internet and computer crimes.

Some related prior federal child porn prosecution and sentencing posts:

March 16, 2010 at 10:32 PM | Permalink

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Comments

this is just sad.. i hope they could come up with a firm law so that those who are caught will be punished well and accordingly.

Posted by: renaissance costume | Mar 17, 2010 6:57:29 AM

Producing and distributing or buying or trading for inappropriate images of children are self-evidently serious crimes deserving of a serious mix of punishment and treatment.

But stretching broad, sweeping federal statutes to make serious crimes of merely looking at such pictures or "possessing" a recoverable trace or two of images citizens might have innocently stumbled upon requires lots of imagination and a knack for demagoguery.

It also criminalizes and therefore chills legitimate journalistic or academic efforts to thoroughly report on or learn about the issue.

The dissenting federal judges are right (and brave) to question a regimen that depends on wild-eyed extrapolation, conjecture and hysteria in order to justify unduly harsh sentences for citizens who’ve neither harmed nor posed a plausible threat to any child.

Posted by: John K | Mar 17, 2010 12:33:42 PM

Great article. However, the "revictimization" argument is pure bullshit, and it will not be made true by the soundbite repitions of an ardent AUSA. If the Justice Department (or state prosecutors) actually believed that a person was "revictimized" each time the image was viewed, they would have a policy of agreeing to stipulate to the content and nature of the images in every case that proceeds to trial. They clearly do not have such an interest; hoping to railroad defendants by the content of the images, they refuse to stipulate and display the images in open court for the full public to view.

Second, the nature of the internet and the offense makes the guidelines as well as the statutory minimums irrational. Possession may very well be viewed by judges as a less serious offense than, say, receipt (which carries a mandatory minimum of five years), but the evidence necessary to prove the offense is not much different. Which is to say, most defendants who possess an image of child pornography have also received the image in interstate commerce (owing, in no small part, to the nature of the internet), and consequently they're offered five years on the possession charges with receipt being dropped; if they go to trial on receipt and lose they'll face the same sentence. The rationale for the five year minimum in the context of receipt is not clear from the legislative record, but there it is: roughly the same elements, same level of culpability, much greater sentence.

In any event, perhaps the most disturbing element of the article is the discussion of how one could unknowingly come to possess perhaps hundreds of these images by visiting legitimate sites. This has never come up in a case that I've seen, but the prospect is frightening given not only the sentences authorized by statute but of course the collateral consequences of being convicted of a registry offense. Given the Justice Department's willingness to prosecute academics, journalists and vigilantes for unlawful possession, I have no confidence in their exercise of discretion in weighing a case of unknowing possession.

Moral panics create terrible law. It was true in the 1980s when they were busy using hypnotherapy and other "scientific" techniques to "tease out" repressed memories, and it is true today. All that we lack is a contemporary Carl Sagan to highlight the abuses for a popular audience.

Posted by: Alec | Mar 17, 2010 7:18:22 PM

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