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February 13, 2014

"Is possession of child pornography a crime worthy of years in prison?"

The question in the title of this post is the sub-headline of this new Jacob Sullum piece at Reason.com. The piece starts by talking through the recent Paroline argument concerning restitution punishments for child porn downloaders and then moves to these comments:

As a result of congressional edicts, the average sentence in federal child porn cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission.

Under federal law, receiving child pornography, which could mean viewing or downloading a single image, triggers a mandatory minimum sentence of five years.  Federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common, such as using a computer, swapping photos, or possessing more than 600 images (with each video counted as 75 images).  The maximum penalty is 20 years....

When the Supreme Court upheld bans on possession of child pornography in 1989, its main rationale was that demand for this material encourages its production, which necessarily involves the abuse of children.  But this argument has little relevance now that people who look at child pornography typically get it online for free.  Furthermore, people who possess "sexually obscene images of children" — production of which need not entail abuse of any actual children — face the same heavy penalties.

Another rationale for criminalizing possession of child pornography, mentioned by the sentencing commission in its report, is that these images "validate and normalize the sexual exploitation of children."  Yet the same could be said of explicit arguments in favor of sex with minors, which nevertheless enjoy First Amendment protection.

Even if you agree that possessing child pornography should be a crime, the current penalty structure is clearly out of whack.  Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children.

February 13, 2014 at 11:51 AM | Permalink

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The author of the article writes that "Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children."

Not in the world Puritans, where the thought is worse than the deed.

Posted by: observer | Feb 13, 2014 12:17:00 PM

| “punished more severely than people who rape children [In the world of the Puritans]"|

Be an astute rather than an obtuse “observer” and commentator!

Puritans sought and achieved the execution of actual rapists.

e.g.::_._ “On this day in 1675, in the then-Puritan Massachusetts Bay Colony (now Essex County, Massachusetts), 27-year-old Samuel Guile was hanged for
“violently and forcibly” raping Mary Ash on Christmas Day the previous year.”

e.g.::_._“On this date in 1777, crying out “Stand clear! Look to yourselves! I am the first hypocrite in Sion!”, a clerical schoolmaster was hanged at Tyburn for
raping one of his charges [a 9-year-old.]” .....www.executedtoday.com

Posted by: Adamakis | Feb 13, 2014 1:10:04 PM

Adamakis, I was speaking metaphorically--as it were. Of course the Puritans executed actual rapists. Regretfully, they also burned old women alive, convinced by righteous zeal, that they were burning witches.

Posted by: observer | Feb 13, 2014 1:16:49 PM

/././ “Just shy of her second birthday, Serenity Brown was possibly beaten to death by her father, Edward, who then sliced her up and fed her to a dog,
according to law enforcement sources and documents.

Little Serenity was listening to her mother, Paula Johnson, read a story inside their Canarsie apartment when, according to Johnson, her ex-con dad,
Edward (Chuck) Brown, flew into a rage over the child’s laughter, law enforcement sources said.

Social workers visited the mom’s new address 5 miles away in Flatbush after a report that Johnson, 35, was keeping her 12-year-old son home from school.
While at the Coney Island Ave. home, the workers came to the horrible realization that Serenity while listed as receiving public assistance was nowhere
to be found, records from the Administration for Children’s Services show.

Johnson initially claimed Serenity was with her paternal grandmother in Alabama before coming clean about her daughter’s gruesome demise.

ACS received an anonymous phone tip last March claiming that “the mother and father got rid of the child by feeding the child to a pit bull.
The father then killed the dog,” agency documents show."

BY TINA MOORE / NEW YORK DAILY NEWS
MONDAY, FEBRUARY 10, 2014, 2:30 AM

-- Yeah, the death penalty for this bloke would be wrong to the enlightened in New York today, but not to the
fundamentalist Puritans of old.--

-- www.nydailynews.com/new-york/nyc-crime/exclusive-brooklyn-dad-killed-baby-fed-dog-2006-police-sources-article-1.1607896

Posted by: Adamakis | Feb 13, 2014 1:19:44 PM

The piece works best in some of the arguments:

[1] "arguments" about things are not the same thing as actually taking part in some fashion (including looking at real pictures of them -- the case is much weaker as to virtual porn, which to my understanding the usual obscenity rules apply)

[2] actual physical harm to children is obviously worse than looking at pictures of it, so the punishments can be disproportionate to the offense in that sense.

[3] the level of harm is open to doubt, though this would not totally erase the legitimacy of some punishments. OTOH, it could call into question others, including barriers to obtaining a law license for a long span of time.

There are various problems involved but an absolutist argument is much less convincing.

Posted by: Joe | Feb 13, 2014 2:09:09 PM

Joe --

"...an absolutist argument is much less convincing."

Just so. That is why your absolutist argument that the death penalty can never be applied in any circumstances whatever, no matter how grotesque and numerous the murders or unquestionable the proof of guilt, is unconvincing.

Posted by: Bill Otis | Feb 13, 2014 2:44:17 PM

@Joe.

"but an absolutist argument is much less convincing."

It depends on the argument. The first thing that must be established is that there is harm caused by an action. There are two broad theories of harm in the law: tangible harm and intangible harm. A tangible harm finds in root in some theory of physical assault, such as battery, or deprivation, such as stealing. An intangible harm finds its root in some theory of spiritual offense--the classical example being the injunction to not "take the Lord's name in vain".

If one accepts that the civil law is fundamentally different from religious law then it is a question worthy of serious consideration has to whether intangible harms are ever legally cognizable in a democratic society. My mother used to say that "sticks and stones may break my bones but words will never hurt me." From this perspective the viewing of child pornography is harmless because it is not, metaphorically, impacting the child with stick and stones.

One of the many reasons I believe that viewing child pornography is protected under the 1A is because it is a tiny intellectual leap from banning child pornography to banning religious icons, a practice that has occurred many times in the past in other Western societies. One can imagine the cultural uproar in America if Congress passed a law banning the image of Jesus Christ. But there is no cogent 1A principle separating religious icons from child pornography. Indeed, many of the cherubs in the Sistine Chapel could be classified as child porn (some will find that prophetic) under current SCOTUS precedent. It is simply that as a culture we have become unsympathetic to images of naked children and more sympathetic to pictures of dead white males.

Posted by: Daniel | Feb 13, 2014 2:56:25 PM

If it was "just so," Bill, it would be "less" convincing, not mere "unconvincing," full stop. It is true that absolutist arguments in general are harder to make. But, the idea that there are no absolutes is itself absolutist.

Moving on to Daniel. Non-physical offenses, such as emotional distress, is not merely a "spiritual" offense with some sort of religious overtone. "Physical" offenses aren't the only things that civil and criminal law targets. Also, child pornography aids and abets direct physical harm to children -- actual illegal sexual conduct. This is not merely some "spiritual" matter.

It also is not a "tiny" leap to move from banning viewing actual children have sex to banning religious icons. "Cultural uproar" is not the grounds fro child pornography possession bans. Clearly, the 1A allows speech that causes "uproar" and it also protects religious expression, even if the expression is opposed by other people. And, I specifically noted that actual depictions, not virtual images such as cartoons or artistic representations are what I think should be targeted.

Also, mere nudity isn't "child porn" either. Under current law, no, the cherubs on the Sistine Chapel could not be classified as child porn under current SCOTUS precedent. The precedent specifically protected various depictions of non-actual children as well as even certain depictions of teenagers having sex, though not totally explicit (such as Brooke Shields playing a prostitute or French movies where teenage girls have simulated sex). OTOH, five year old boys giving actual oral sex or young teens masturbating explicitly would be illegal.

Posted by: Joe | Feb 13, 2014 4:44:50 PM

@joe

First, whether one calls it "spiritual" or "emotional" or "psychological" makes no difference as the harms are all intangible. That is the common characteristic they all share. Playing with words does not advance your cause any. I agree with your assessment that physical offenses are not the only thing the law targets. That's a factual claim. Whether that is all the law should target, which is my point, is a normative claim. You can disagree with that normative claim but factuality is no counterargument to normality; that is Philosophy 101.

"Cultural uproar" is not the grounds fro child pornography possession bans."

Really? Then tell me what is the basis? Inform us oh wise one of your great wisdom!

"Under current law, no, the cherubs on the Sistine Chapel could not be classified as child porn under current SCOTUS precedent."

What prevents it? The current standard is not based upon nudity or the lack thereof but whether the display of the child's body is "lascivious"(See US 18 2256). And what lascivious means is whatever a judge wants it to mean (See US v. Dost). Since most of the justices on the current court are Catholic I am certain they would not find the Sistine Chapel lascivious. But there is nothing in SCOTUS precedent itself--as opposed to the way a specific court interprets it--that prevents a different group of justices from holding that the cherubs of the Sistine Chapel are in fact "lascivious", like say a group of SCOTUS justices that were all Muslim.

Posted by: Daniel | Feb 13, 2014 5:44:23 PM

Something that is "intangible" is not the same thing as "spiritual," which in your comment was but one aspect of an overall sentiment that targets the laws as in effect religious in nature or basically akin to targeting things on religious grounds. Emotional distress is not a "religious" concept to my understanding.

Regardless, put aside the stupid "wise one" crack that is uncalled for and makes you look childish, the main grounds -- you might find them factually ungrounded like the article cited but they are readily available -- is to prevent physical harm. The material is made largely for profit and viewers. Downloading furthers it. The emotional harm is but a secondary concern.

I alluded to precedent that has protected various types of sexual depictions of minors. If films can portray teen prostitution or show nudity, the cherubs of the Sistine Chapel are safe. The USSC has already explained how various depictions of child sexuality not involving actual children having sex is protected. U.S v. Dost says that "using general principles as guides for analysis" the matter has to be tried case by case. This is how the law often works -- "beyond a reasonable doubt" means what a jury thinks, but there still are some limits.

The fact the justices are "Catholic" is not going to matter here. Are Protestants not at times conservative about sex? Like the potshot about "oh wise one," it is hard to take you seriously there.

Posted by: Joe | Feb 14, 2014 11:23:04 AM

Sullum asks a good question. The answer to it is no.

The rationale for the law is a doozy...further evidence, if more were needed, that lawmakers and prosecutors are capable of rationalizing practically anything that generates headlines and boosts careers.

Posted by: John K | Feb 14, 2014 1:17:18 PM

Keep in mind that "child pornography" does not necessarily have to depict real children in sexual activity or situations to be illegal. In addition, materials that may even be legal (and, in fact, highly promoted) in other countries render people to be convicted of a child sex offense in the US.

http://www.animenewsnetwork.com/news/2010-02-11/christopher-handley-sentenced-to-6-months-for-obscene-manga

In addition, pictures of actual children, usually their head, which are taped to otherwise legal pornographic pictures are also considered child porn and has been successfully prosecuted. The case, though, was successfully appealed after the man spent a year and a half in prison:

http://www.theledger.com/article/20101203/NEWS/101209887

So child pornography is not necesarily about children being exploited. Having said that, this should NOT alleviate the producers of such pornography as well as the commercial distributors. But I would submit that the items above that resulted in imprisonment for individuals be part of the mix.

Posted by: Eric Knight | Feb 14, 2014 6:56:52 PM

Liberals just dont get it...Take this quote: "Even if you agree that possessing child pornography should be a crime, the current penalty structure is clearly out of whack. Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children" Anyone with these thoughts should be BANNED from ever being a judge...Unfortunately we have to many of these judges with the same attitude. ANY possession is JUST as bad as producing it. LIBERALISM is a mental disorder.

Posted by: DeanO | Feb 14, 2014 9:03:52 PM

Wouldn't "conservatives" use the same argument against liberals, calling the pedos, soft on crime, bleeding hearts?

If a child is beaten or amputated or executed, and photos are viewed, should that be a crime, REMEMBER THE FEDERAL AND STATES DEFINITION OF CHILD PORN INCLUDES PICTURES OF 17 YEAR OLDS WHO ARE NUDE AND NOT NECESSARILY THOSE HAVING SEXUAL CONTACT?

In my not so complete and well though of opinion, however child "porn" should be like a copyright system, against the law yes, and of course reformed, caps on damages and sentencing, and then the type of "porn", sexting for instance is "porn" legally against teens.

Posted by: Kris | Feb 15, 2014 2:28:29 AM

I think the definition too broad in a few cases, though generally, honestly, most of the cases aren't really borderline cases. Still, it is to be noted that child pornography can be targeted as basic obscenity -- a higher test required -- and there, in a few cases, even purely written or at least all adult related, material was prosecuted.

I'm against prosecution of adult related obscenity or anything not related to real children. There are some borderline cases there especially with new technology. But, conviction on result of child related manga or whatever is a step too far. The OP as I noted, however, isn't only touching that.

Posted by: Joe | Feb 15, 2014 12:24:10 PM

It would be constructive if some computer wiz/perp would effectively send child porn images to the computers of every federal judge and their clerks in America. And, secondly, imbed those images on their screen when they try to open up the daily email. If this could be then recorded that they have a child porn image on their screen we would all benefit. They would all be perps and have to disqualify themselves in any porn perp case.

Posted by: Liberty1st | Feb 15, 2014 2:24:53 PM

DeanO

What in the world does this debate have to do with liberalism versus conservatism? I thought it was conservatives who are anti-statist and seek less government intervention. There is no other country in the civilized world that imposes the sort of punishments for child porn possession and many other offenses that we have in this country. What is the rationale for this type of exceptionalism. My take is that it is the idiots and rubes and people like you who should know better but seek to who enable them, rather than support empirically-based efforts to implement expertise rather than emotionally-based arguments that cater to the populist impulses of the un-educated and in-sophisticated. I will give credit to liberals (and I am not one on many issues) for having more respect for rational policy choices than conservatives, who in this country tend to cater to Southern rural knuckled draggers and other dregs of society. As someone sophisticated enough to visit this site, what is your rationale for standing with the idiots?

Posted by: Mark | Feb 15, 2014 5:38:30 PM

I recall that court(s), have upheld LIFE SENTENCES FOR SIMPLY POSSESSING "CHILD PORN" (broad definition emphasis can include teens), on the basis that EACH IMAGE COUNTS AS A LONG SENTENCE, SO SEVERAL IMAGES WARRANT A LIFE SENTENCE.

So if someone commits arson, should they be charged with multiple counts over how many times they struck matches, maybe, but what about a child porn video, how long, does it matter, or how severe?

This gives an incentive for someone to commit "suicide by cop" if the police show up at the door or at-least kill or actually rape someone and make a run for it, how silly.

To Liberty1st, if the judges children made nude non-sexual pictures in a certain pose, it would be considered "child porn".

Any judge who doesn't agree that is a cruel and unusual punishment should be removed from office. Of course if a child is amputated or executed or tortured, there is no penalty for viewing a video, and of course like I said "legal child porn need not involved rape or actual sexual conduct or actual children, it can be teens sexting".

Posted by: Kris | Feb 18, 2014 4:04:42 AM

Ah Kris:

That is the Beauty (or Bastardy) of these laws. The government gets to define what it means, no children need be involved in any part of the equation (anime or manga for example). What bothers me is that many people have no issue with this deliberate Congressional or DOJ abuse of power.

Until we shorten the legal leash of the government, expansion of government corruption will continue to follow, it is inevitable. Look at how the SMART (really dumb) Office of the DOJ interprets the POS Adam Walsh Act wrt International Travel.

Just don't call them Nazis, even though they have definitely earned the Title.

PS: I am sure that you meant to use "illegal" instead of "legal" in the last sentence of your last post.

Posted by: albeed | Feb 18, 2014 8:16:52 AM

I agree, recall that in certain states, folks defined as a "sex offender" are forced to carry a special ID that says "sex offender", the fact that courts have not considered that punishment is absurd.

In other words you can't leave your house without ID, so if you go swimming, what happens if your ID is not with you or in the locker room? Should the ID be stapled to you? If you lose your ID you cannot leave the house, remember folks, you are not on probation or parole, and your only crime may have been sleeping with a teen while you were a teen (not all states have the same exemptions) 40 years ago.

This is dangerous overreach of government, but surprisingly both parties do not care, only if it comes political or reaches the media. Of course if one murders someone or beats them with a baseball bat or sets them on fire or other henious crime, there is no such penalty or reporting, heck even TERRORISTS OR RELATED OFFENSES DO NOT HAVE TO REGISTER FOR THE GOVERNMENT!

The word "SEX" is a dirty and attractive word for a campaign, so folks get away with the whole sex registry garbage. While one values freedom in the United States as opposed to Russia's putin, one must remember that liberty aint what it used to be at least for most folks (the good ole days had a lot of abuses of liberty but they were tapered off a bit in the later 20th century).

Posted by: Kris | Feb 20, 2014 5:15:18 AM

The California Supreme Court has now held ("In re Grant") that possessing child pornography is "moral turpitude." For criticism, see "Three strikes against the California Supreme Court: Disregarding lack of candor for the sake of political correctness" — http://tinyurl.com/koc5oov .

Stephen R. Diamond
Supplier of legal theories

Posted by: Stephen R. DIamond | Feb 22, 2014 2:12:25 PM

how true albeed.

"I agree, recall that in certain states, folks defined as a "sex offender" are forced to carry a special ID that says "sex offender", the fact that courts have not considered that punishment is absurd."

Bill's going to hate it but it is the fact of this type of criminal stupidity coming from all lvl's of gov in the former United States of American that makes a hell of a lot of us think of NAZI goose steppers.

just hope I'm still here when they get what all Nazi or hate filled little shits eventually get.

Posted by: rodsmith | Feb 28, 2014 1:06:48 PM

There is NO market for child porn(CP) period. If you can find CP so can the police. If you paid for CP on the net it would most likely be in the form of credit card, bit coin etc. and the police will find that also. My research has discovered from reading the myriad of arrests everyday for child porn that 99% is downloaded via person to person (P2P) software which the police can also detect. There is NO charge for downloading it other than your internet access fee. There is NO money to be made from child porn, period. The only way an alleged victim finds out their photo, video or both was viewed is when the government tells them so creating essentially a self filled prophesy.

Kitty Wolf of CautionClick.com says ever 60 min. someone home is being searched for child porn. Thousands are being arrested and prosecuted or not their lives are over; for what? The stigma follows them as they loose JOBS, friends, family, homes, cars for doing nothing more than look at a photo or video! One cant blame law enforcement including prosecutors for doing the job they were asked to do by the legislature. If that is the case isn't this where Judicial discernment should come into play? If your not actually not hurting a child you shouldn't spend one day in jail.

The laws were designed when there was a market via print and film prior to the internet. That market can now find it for FREE via P2P. What I also have found is over 90% of CP is actually INCEST or infamilial photos, videos or both. Less than 1% of child abductions are at the hands of strangers. Kids are being nothing more than being kids and they are going to jail for it sexting. It is a sad state of affairs with the government perpetuating Comstock's views.

All I ask is the reader think logically for just one minute. If front of me I have a voodoo doll I stick that voodoo doll with a pin and the person I curse is injured. CP Voodoo logic; Someone possesses a photo of a child, in the form of 0′s and 1′s in a computer file. When s/he looks at the medium, the individual depicted in the photo, video or both gets victimized and hurt. While I can appreciate that creating CP victimizes children, I cannot agree that looking for, viewing, or collecting child porn actually victimizes anyone. If you were to apply the same reasoning to any other crime, then looking at a photo of any crime would be re-victimizing someone.

Use that same voodoo logic and the same reasoning law enforcement uses and apply it to murder and terrorism. If anyone looks for, views images or video footage of 9/11, nazi war crimes, or autopsy photos, etc, they would be guilty of having re-victimized people viewed in that medium being a photo, video or both. Where was the child abuse industry when the bombs were killing thousands of children in Iraq and Afghanistan; now that my friend is child porn!! If the simple act of viewing an image of someone is harmful perhaps an appropriate punishment would be to simply take a photo of the perpetrator in jail, then set them free, but have some look at the photo that was taken while they were in jail.

Our nation is running on BORROWED money while thousands are going to jail for VICTIM-LESS crimes on the nations credit card. Wall ST. Bankers arrested for destroying our nations economy; ONE jailed 0! People in jail who downloaded CP intentionally or not, THOUSANDS. 24 per day, 168 per week, 672 per month, over 8000 per year and those numbers are on the low end.

Posted by: Frank Gillice BSc | May 20, 2014 4:22:54 PM

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