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April 29, 2012

"Debate rages over severity of child-porn sentences"

The AP has this lengthy new piece, sharing the headline of this post, on what is now a fairly old story: federal judges and others highlighting that the guideline sentences for child porn downloaders seem often unduly harsh.  I am not aware of any major new developments on this front, but these excerpts from the AP piece effectively review recent parts of this long-running debate over federal sentencing law and practices:

Their crimes are so loathsome that some hardened courtroom veterans recoil at viewing the evidence.  Yet child-pornography offenders are now the focus of an intense debate within the legal community as to whether the federal sentences they face have become, in many cases, too severe.

By the end of this year, after a review dating to 2009, the U.S. Sentencing Commission plans to release a report that's likely to propose changes to the sentencing guidelines that it oversees.  It's a daunting task, given the polarized viewpoints that the commission is weighing.  The issue "is highly charged, both emotionally and politically," said one of the six commissioners, U.S. District Judge Beryl Howell.

On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child.  In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high.  Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes.

On the other hand, some prosecutors and members of Congress, as well as advocates for sexual-abuse victims, oppose any push for more leniency.  At a public hearing in February, the Sentencing Commission received a victim's statement lamenting that child pornography offenders "are being entertained by my shame and pain."...

Once completed, the Sentencing Commission report will be submitted to Congress, which could shelve it or incorporate its recommendations into new legislation.  Already, the commission has conveyed some concerns.  In a 2010 report on mandatory minimum sentences, the commission said the penalties for certain child pornography offenses "may be excessively severe and as a result are being applied inconsistently."

However, similar misgivings voiced by the commission in previous years failed to deter Congress from repeatedly ratcheting up the penalties - including legislation in 2003 that more than doubled average sentences for child pornography crimes....

In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former federal prosecutor Linda Dale Hoffa criticized the approach by Congress.  "The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote.  "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."...

As a backdrop to the sentencing debate, Internet-based child pornography has proliferated, and the crime is an increasingly high priority for federal law enforcement agents.  According to the Justice Department, federal prosecutors obtained at least 2,713 indictments for sexual exploitation of minors in 2011, up from 1,901 in 2006....

There's one point of agreement in the sentencing debate: All parties agree that penalties should remain severe -- or be toughened -- for those who produce and promote child pornography.  A key point of contention, by contrast, is the degree to which offenders charged with receipt and possession of child porn pose a risk of physically abusing children themselves, as opposed to looking at images of abuse....

Susan Howley, public policy director for the National Center for Victims of Crime, has been urging those involved in the debate to keep the victims in mind.  She says they face higher risk of developing mental health disorders, sexual dysfunction and substance abuse problems. "While sentencing does not appear to be the perfect tool to reduce the market for child abuse images, it is one of the few tools available," Howley told the public hearing in February. "Through sentencing we express to society, and to the individual victims and family members harmed, that we recognize the seriousness of this offense."

A few related older and more recent child porn prosecution and sentencing posts:

April 29, 2012 at 07:12 PM | Permalink

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Comments

Criminal evidence is subject to Daubert standards. There is some garbage science going on here.

1) The harsh penalties represent a federal price support for more expensive child porn produced by East European criminal syndicates.

2) If the purpose of the law is to reduce child sexual abuse, it has an opposite effect. Legalization in several national, natural experiments consistently resulted in a decrease in the reporting of child sexual abuse. The laws and harsh sentences increase child sexual abuse more than any other single factor.

3) The biggest downloader and subsidizer by purchasing of child porn is the federal government itself. All defendants should seek total e-discovery of the private and work computers of federal prosecutors and judges. Refer all child pron to the FBI. The metadata should reveal any use outside of work requirements.

Posted by: Supremacy Claus | Apr 29, 2012 9:15:28 PM

The rampant fear mongering isn't conducive to rational policy but it does seem to be a way to make a dollar. I got a spam e-mail this evening that somehow evaded the filters screaming "ARE YOUR KIDS IN DANGER OF CHILD PREDATORS!" Out of curiosity I did some poking around. The e-mail is for a website called Kidslivesafe.com which has lots of fear mongering and completely irrelevant statistics but sure looks well-designed. You have to pay a fee to join, of course, because it's a LLC.

What amused me most is that on the subscription page you are promised "World Class Member Support by parents who care about your children's well being." despite the fact that the BBB listing for the corporation lists the number of employees as "1". According to Google Street view the mailing address for the business is a mailbox at a UPS Store.

http://www.santabarbara.bbb.org/business-reviews/Safety-Consultants/KidsLiveSafecom-in-Santa-Barbara-CA-92010018

whois lists the web registration as "private" so I couldn't confirm my sneaking suspicion that Grover Norquist is behind the site.

All I can conclude is that the child sex panic has gotten so out of control even the leeches aren't afraid to suck a little blood.

Posted by: Daniel | Apr 30, 2012 2:57:11 AM

"While sentencing does not appear to be the perfect tool to reduce the market for child abuse images, it is one of the few tools available,"

or put differently

"While a sledgehammer does not appear to be the perfect tool to paint a china cup, it is one of the few tools available,"

Posted by: Jardinero1 | Apr 30, 2012 10:33:58 AM

"While a sledgehammer does not appear to be the perfect tool to paint a china cup, it is one of the few tools available,"

....and so therefore we must use it vociferously, and with great mirth.

Posted by: Guy | Apr 30, 2012 11:22:58 AM

"....and so therefore we must use it vociferously, and with great mirth."

Despite the fact that there is no identifiable market for the stuff to begin with...

Meanwhile, back at the ranch...

http://gma.yahoo.com/four-old-young-too-young-072532737--abc-news-topstories.html

Where I live they they teach the little girls to walk by putting them in 4" high heels, usually starting around two. I asked a mom about this and she told me it was a "fashion statement" which I'm quite sure is the same thing the Japanese once said about binding women's feet.

And so the one thing we learn from history is that we don't learn from history.


Posted by: Daniel | Apr 30, 2012 1:56:30 PM

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