Friday, September 27, 2013

Child Pornography: An Argument for Proportionality in Sentencing

The topic for today is child pornography, and more particularly, the federal crimes of possession, receipt and distribution of child pornography.  These crimes – arising as they do from the victimization of children for the sexual gratification of adults – are among those that understandably incite the strongest of emotional reactions. 

Even so, it is important to differentiate between those who create child pornography and those who receive and view it or share it with others.  The creation of child pornography is essentially a violent crime in which a person sexually assaults a child and records that assault in photographs or videos.  By contrast, the crimes of possession, receipt and distribution of child pornography are not violent crimes in and of themselves.  Oftentimes, the images that are being viewed and traded were created years or even decades before.  This is not to minimize in any way the emotional trauma that victims suffer knowing that these images are in circulation.  However, few would argue against punishing the crimes that resulted in the creation of the images – the violent sexual assault of children – significantly more harshly than the viewing or trading of the images years later. 

Federal prosecutors often argue that child pornography offenses are “gateway” crimes at the beginning of a trajectory that always leads to child sexual assault.  Others contend that most of those who commit child pornography offenses have also committed unreported contact offenses against children.  The reality appears to be quite different from this alarming picture, however.  The study upon which the government often relies to argue that most child pornography offenders have previously molested children has been criticized as deeply flawed.  In that study conducted by the federal Bureau of Prisons, inmates participating in a sexual offender program were asked to self-report prior contact offenses, but were threatened with removal from the program and return to the general prison population if they failed to “truthfully” self-report.  Independent researchers have criticized this coercive methodology as tending to lead to over-reporting of prior contact offenses by program participants.  Moreover, studies of recidivism among child pornography offenders suggest a contact sexual re-offense rate of approximately thirteen percent over a four or five year period.

The increase in child pornography prosecutions in the federal criminal justice system over the past decade has been quite extraordinary.  In my view, the growth rate is attributable to several interrelated factors.  First, child pornography is more accessible now than ever before due to its availability on the Internet.  When pornography was only available in physical form – on paper or VHS tapes for example – only those with a real predilection for sexually explicit materials involving children went to the trouble to acquire it.  It has been my experience in handling child pornography cases in the Internet age that most of my child porn clients do not have a clear preference for child pornography.  Rather, they enjoy pornography generally and child pornography is only one of any number of categories of pornography that they will view, collect or share. 

Something that was surprising to me when I began handling these cases is how easy child pornography is to find online.  Indeed, the ease of acquisition of child pornography, and the fact that it is often found alongside other types of perfectly legal pornography, often lull users either into believing that what they are viewing is legal or that the consequences of viewing it are less severe than they really are.  As a result and as psychologists recognize, there is a significant cohort of people who look at child pornography who would more appropriately be characterized as pornography addicts than as pedophiles. 

The availability of child pornography online and the concomitant increase in those who now have access to it is only one part of the explanation of why child pornography prosecutions have increased so dramatically.  A second factor is how easy they are to prosecute.  Although federal prosecutors have an ethical obligation to “do justice,” they are still evaluated based upon their “productivity,” which really means the numbers of indictments and lengthy sentences they obtain.  Child pornography offenses are easy to prosecute because the data trail is so simple to follow.  Federal agents can identify the IP addresses of those who access child pornography and then use their subpoena power to find the owners of those IP addresses.  Forensic analysis of a computer associated with an IP address that confirms the presence of child pornography makes the case easy for the prosecutor.  Because child pornography offenses are so emotionally fraught, prosecutors have little incentive to exercise their prosecutorial discretion in any way that benefits a child porn offender.

As is often the case, politics also play a role.  Candidates for national political office have long known that advocating for longer sentences generally – and for child pornography sentences specifically – is a vote-getter.  At the federal level, there is little concern for the cost of ever-increasing criminal sentences; the same is not true at the state level where balanced-budget amendments come into play.  Because of these political pressures, sentences for child pornography increasingly have been ratcheted upward such that now most federal child pornography offenders are subject to sentencing ranges that reach or exceed twenty years of imprisonment.  Parole has been abolished in the federal system, so a federal offender can expect to serve about 85% of his sentence after receiving credit for good behavior.  Because violent crimes are usually still prosecuted by the states, however, where sentences are generally lower and parole still exists, it would not be unusual for someone who had committed a contact offense against a child to serve a state sentence that was lower than that imposed for a federal child pornography offense.  Putting it bluntly, the guy who raped a child to make the porn could easily serve less time than the guy who looked at the pictures years later.  I have actually seen this occur in some of my own cases.

Proportionality is an important factor in ensuring the fairness of our criminal justice system.  In simplest terms, proportionality means that those who do worse things should get longer sentences.  Sentencing in child pornography cases often violates this fundamental principle.  Unfortunately, lowering sentences for child pornography offenders is political suicide.  Nonetheless, I hope that Congress will look at reducing sentences in these sorts of cases as part of its review of overcriminalization that I discussed in an earlier post.  In the meantime it is incumbent upon criminal defense lawyers to continue our zealous advocacy in these cases and to point out the flaws in the system to the courts.