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August 24, 2008

Effective review of federal uptick in child-porn prosecutions

In today's San Jose Mercury News is this effective article, headlined "Feds push child-porn cases; penalty can be years in prison."  Here are excerpts:

Just a few mouse clicks into the forbidden world of Internet child porn can transform an apparently upstanding individual into a federal prison inmate — doing a long sentence.

That's the harsh reality former KGO radio host Bernie Ward will encounter this week.  The popular and prominent liberal voice on Bay Area radio for decades is scheduled to be sentenced Thursday in San Francisco federal court for distributing sexual images of young children.  The best the 57-year-old Ward can hope for is five years in prison. Setting aside his celebrity status, Ward's case is no aberration. Ward is ensnared in what is becoming one of the U.S. Justice Department's fastest-growing areas of prosecution.

Child-porn crimes have gone from a rarity on federal court dockets to a phenomenon, with prosecutions jumping nationally from a scant 30 in 1995 to more than 2,100 last year, according to a Mercury News analysis of Justice Department data maintained by Syracuse University. In the Bay Area, dozens of federal cases are being filed every year and the U.S. Attorney's Office is on pace to file a record number of child-porn prosecutions in 2008. There were just two child-porn cases filed in the region's federal courts in 1995 — an era when child pornography just began to proliferate on the Web.

Aggressive law enforcement teams — nationally and in the Bay Area — are policing the Internet. Typically, they are catching successful people — engineers, businessmen, professors and lawyers — who are under the false impression that their habit is personal, harmless and anonymous.  But by downloading or sharing sexual images of pre-pubescent children, those who do so find out they are not sequestered by the privacy of their own computers and are shocked when they suddenly find themselves facing the law's wrath... 

For the federal courts, child-porn cases are raising a host of issues, from concerns in the defense bar that prosecutors are casting too broad a net to questions about the severity of the prison sentences, which often carry mandatory minimum terms ordinarily reserved for violent felons in gun cases and major drug dealers. 

"These cases are difficult," said San Jose U.S. District Judge Jeremy Fogel, who just this summer sent several child-porn defendants to prison. "Many of the defendants have no previous criminal history and have been productive members of the community, and often there are complex psychological reasons why (they) are interested in child pornography.  "At the same time," Fogel added, "the images themselves are truly horrible. Even passive viewers of such material help to make its production profitable."

Some related child porn sentencing posts:

August 24, 2008 at 10:32 AM | Permalink


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It's too bad that nobody is interested in the fact that prosecutions for merely viewing child pornography trample on the First Amendment. The exception that allows these laws to remain on the books was created out of thin air and contrary to the actual words of the Constitution by Justices who are too afraid to be seen as defending child porn. I can only hope and pray that future Justices will have the strength of character and the courageous conviction necessary to uphold the supreme law of this land.

Posted by: Ron Mexico | Aug 24, 2008 4:06:09 PM

As I have insisted for years the real victims here are the children. The problem with many of the laws is not that they are ill intentioned but that they are so out of touch with reality. Sooner or later as the cases build up and more attention gets paid there will be a backlash; there always is. And then what will happen is that people will look the other way, and the problem with get swept back under the rug. So while it can be argued that these cases are bringing much needed attention to the problem, in the long run they will make the problem worse, not better.

"Even passive viewers of such material help to make its production profitable." That statement is a damnable lie, but all too often swallowed hook line and sinker by people who don't know squat about sex crimes. The overwhelming majority of sex crimes in the USA are not committed for money. Reducing photographic demand does nothing to limit supply because supply is not driven by demand for pictures, it's driven by the mental and emotional demands of the abuser.

Posted by: Daniel | Aug 24, 2008 8:12:19 PM

As despicable as these crimes are, what bothers me about these cases is how easy it is for the government to prove its case. After all, these are strict liability cases, which means the government doesn't have to prove much to get a conviction. That makes these cases very efficient but can we say that aggressive enforcement has stemmed acts of child sex abuse?

Additionally (albeit probably a rare event) what about computer viruses and spybots? Could someone be accused of possession even though they didn't knowingly download this stuff? Can you image a worse crime to be accused of than this?

Posted by: Steve | Aug 25, 2008 10:12:04 AM

I can only hope and pray that future Justices will have the strength of character and the courageous conviction necessary to uphold the supreme law of this land.

An independent federal judiciary? That will absolutely never happen. They are too afraid of the DOJ to do anything other than what the Beast demands. These are the same men and women sentencing defendants for crimes for which they have already been acquitted. And again, ask ten lay persons if they know that this happens everyday and they will call you a liar. And justify it all you want, but wrong is still wrong.

Posted by: babalu | Aug 25, 2008 10:25:40 AM


There are a number of problems with your argument, which I would like to see you address.

First of all, you would need to explain why the judiciary is not independent. Art. III judges have life tenure and routinely rule against the government. In fact, if you would read all Supreme Court decision (as a non-treasonous American does), you would see that the government does not have too good a record before the Supreme Court. Moreover, unlike a criminal defendant, the government can choose not to proceed in a prosecution, so you will only see the courts ruling in cases they really think that they can win.

Second of all, while you and I might disagree about sentencing for acquitted conduct, there is a bona fide intellectual dispute about whether it is permissible. There is no indication that people that are acquitted of all crimes are sentenced for acquitted conduct, nor is there is any indication that people are sentenced above a statutory maximum for acquitted conduct.

Posted by: S.c.cutus | Aug 25, 2008 1:03:19 PM

For what it's worth, I did not imply with my previous comment that I don't think the federal judiciary is generally independent. I disagree with babalu. I'm more concerned with a sensitivity to popular opinion that manifests in cases involving subject matter of especial disdain. "Wisdom of repugnance" is not a valid jurisprudential standard.

The legal obscenity line of cases, and certain (but not all) copyright cases (where the Court has not yet had the opportunity to rule on the First Amendment implications) represent the only occasions where "pure speech" has been prohibited. Protests that block entry to medical facilities and even flag burning involve what might be termed "side effects." The speech at issue is coupled with conduct that has an impact beyond the dissemination of information. It is hard to see how a particular configuration of tiny electrical impulses traversing a wire has any effect beyond the transmission of the information itself i.e. the speech itself. What do we call prohibition of speech itself? We call it censorship. I find these inroads of censorship very troubling, and its success in the face of the First Amendment can involve no less than absolute disregard of the rule of law.

Posted by: Ron Mexico | Aug 26, 2008 1:59:04 PM

"At the same time," Fogel added, "the images themselves are truly horrible. Even passive viewers of such material help to make its production profitable."

I wish he would explain how if you do not pay for these images it makes it profitable. I do believe a distinction should be made in this regard, but there is not one. If it's on your computer, paid for or not, the charge is just the same. You can go online on servers such as AOL and in a week get many images that are just floating around. Unfortunately, you have FBI agents in Chat rooms advertising such items, and when you trade with them it's over. Now they have you for "trafficking" and "receiving", which both carry mandatory jail time (as if any average person knows this). The FBI is only making it appear that this is the "norm" online, and you are just trading images on the fringe of the law. Most people falsely believe if you are not in a porn ring, or never have paid for these images, have never contacted a minor online - that the justice system isn't looking for you. This is a "witch hunt" of the largest degree, but as someone else posted, few have the guts to address it because of the volatile nature of the subject matter. Hopefully someday this madness will stop, but I don't see any reason to be optimistic about it.

Posted by: JC | Oct 4, 2008 12:36:19 PM

I think we are all missing the point here. The point is not whether these defendents are being convicted unconsitutionally, rather that there are children behind these crimes. It is the victims we must be placing our attention on. Preventative measures must be taken in the first place. We need to stop the abusers and make them pay for these crimes because without them there is no material and thus no problem. I believe in preventative measures rather formost, then it ses up less interventative measures that need to be taken.

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Posted by: Jimmy@Free-Porn-Movies | Oct 25, 2008 12:39:03 AM

Come on folks, get real about what you are talking about. I can safely say that human rights are eroded to the point where few people want to admit they are NOW!

I was falsely arrested and maliciously prosecuted on the basis of legitimate ADULT porn found on my computer. The basis for the charge? The law is being changed around the world to ensure convictions NO MATTER WHAT! In Australia, a person can be convicted for having images simply because the arresting agent thinks the images are 'apparently of a person under 16 years of age'. Yep, it doesn't matter if they are adults, if they LOOK like they may be younger than 16, then you are GONE - off to goal for up to 10 years!

To add insult to injury, in Australia, you can't sue a police agent for false arrest or malicious prosecution, because if they have done their job in 'good faith' they have no tort to answer to. The Government has legislated against sueing the police in this country.

Just take a look at the empires built in Australia, the UK and also being built in the US on these easy arrests and convictions. They have been described by law enforcement agencies as 'like shooting fish in a barrel'. It's easy money for them because they use the complex psychological repulsion the public feels about such activity as the basis to infringe upon basic human rights all in the name of 'saving the children', and to justify the huge budgets given to them by politicians pent on winning votes on the 'law and order' agenda.

It's coming to a town near you! Just watch, this won't go away, it's moral absolutism at it's best.

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Posted by: CP NOW | Jun 29, 2009 7:40:25 PM

As a former sociology teacher and the wife of someone currently serving time in prison for possessing child porn, I have to say the laws are far from what they should be. Before I started dating my husband, he had recently ended a relationship with his psychotic ex-girlfriend. Near the end, she got angry with him for looking at adult porn and contacting other women online. In August 2002, she reported to the FBI that he was viewing child porn. A susequent search was done October 2002. The SBI agent never examined his computer (but did examine other computers, software,etc.) until January 2004. He never filed charges until after my husband discussed a civil suit for the officer not returning his property (family photos on disk, legal software, etc.) This was in February 2005. His trial was held July 2006 and he was found guilty by a jury of 10 women and two men (the county population is 50/50). Forensic examination of the hard drive showed suspect images that had been viewed and deleted in September (a month AFTER the report) and there were some in October. There were about 18 images in all, along with thousands of adult porn images. He was convicted of possessing nine images that were in a temporary Internet file downloaded the day of the search. His ex is well known for being a snitch and has "friends" in the judicial district. We are sure she knew of the search in advance and suspect she downloaded the images. She claimed to be at work but my husband's "court appointed" attorney did not question this, nor did he ask for a time card. Besides, she worked about five miles from her home. My husband receieved three consecutive 6 to 8 month sentences because he didn't take the plea. He refused to plea to a crime for which he was not guilty. There is more to the story but these are the highlights. All I can say is that this witch hunt needs to end. My husband will have to live with this conviction and be a registered sex offender.

Posted by: Rhonda | Nov 20, 2009 4:30:38 PM

Dear CP NOW,

I'm sorry I missed your post. I have not been back to this blog for ages. Please contact me, there is a very large class action pending in the UK where it is expected details about some very serious corruption issues that span the globe are about to be released. I too was a victim, however I was much more lucky than your partner. I am in contact with a legal team in the UK who have contacts in several countries, and there is a support group now for those falsely accused of this crime. Please make contact at [email protected]

Kindest regards


Posted by: KK | Dec 1, 2009 9:03:25 AM

My brother inlaw was arrested on child porn charges. United states v. Rodreck K. Bogle. He took a plea deal on Oct 5, 2009. He is going to his sentencing hearing on tues. This breaks my heart, this man is not guilty of these charges. I have known him for 20 years. Well educated, successful,person. On the other hand I do not poccess educaion,So excuse my ability to articulate. I think these laws are so harsh for the crime. Even if he had any porn on his hard drive. He never touched a child nor would he ever. I believe in him and have always looked up to him for guidence. This county is headed in the wrong direction,what about education and rebab for these offenders. Truth of the matter is I believe, there is some kind of gain somwhere for goverment to just lock up people with suck backgrounds. Most of these people have not ever committed a crime and have served the community, wonderfully. I hope someone will write to me and help me understand and I need to get involved to help these unfair sentences. I did say I dont know how to write forgive me for that.

Sincerly ,

Frank Bryson

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Posted by: Alfred Stewart | Apr 17, 2010 3:06:48 PM

people dont realize the backlash this has on familys liveing this nightmare . i am one such person . my husband is being accused of such a crime. people can judge on what they know nothing about . my husband became part of a tangeled web of lies being accused of something like this were the fbi only has like to nothing . we never had internet at our home . our computers were only to do at home bussiness nothing more . this is a case of someone useing or had used our preowned computer . i will not talk much about the case but it destroys familys . i lost my home because of this my kids dont know or understand why daddys gone . i am now a single mom raising my kids in a bad economy .were i was a stay at home mom i cant even have intamacy with my own husband . this is something people need to consider my husband has not criminal background at all . there puting these people in the can group as murders and drug lords .its truly a NIGHTMARE.

Posted by: theresa | Dec 20, 2012 7:32:13 PM

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