Should Mere Possession of Child Pornography Mean Decades in Prison?
If someone has downloaded pornographic images of children, should they automatically go to prison? For how long? Is mere possession of child pornography sufficient reason to send someone to prison for decades, even if the suspect never touched a child? Recently, a Payson man received 90 years in prison for merely possessing child pornography, for which the sentencing judge called the sentence "clearly excessive", but had no choice because of mandatory sentencing laws (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn"). Another man, Gulf War veteran Joseph Lauricella, just received a five year sentence from Judge Derek Carlisle in Mohave County (see "LHC Veteran Apologizes During Child Porn Sentencing" by Dave Hawkins).
I know that some people who read this post will have the visceral reaction that of course, if you someone has child pornography, put them in prison and throw away the key. Or even better, put them on a desert island and and forget about them. To those people, this blog is not for you, and if you feel the overwhelming desire to vent your self-righteous frustration, find another forum. This blog is for people who can actual consider actions and consequence, and who do not seek every chance to validate their own self-congratulatory moral superiority.
In some states, merely possessing child pornography is a misdemeanor, but in Arizona it is a felony with a minimum sentence of 10 years for each count. Arizona's statutory scheme is even more severe than the notoriously harsh and rigid federal sentencing guidelines. The mandatory minimum in federal court is five years, or half what Arizona requires. But is either right?
According to the no so liberal Wall Street Journal, some federal judges do not believe mere possessors of child pornography are an actual threat and that the Congressional mandatory minimums are excessive. In fact, they are nothing more than puritanism in the guise of public safety ("Making Punishments Fit the Most Offensive Crimes" by Amir Efrati).
These acts alone are disgusting to most people. But not everyone buys into the idea that they warrant two decades or more in prison. Federal judges around the country are speaking out against what they view as harsh mandatory and recommended sentences, spurred by Congress in recent years.
The sentencing guidelines for child pornography crimes "do not appear to be based on any sort of [science] and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses," wrote U.S. District Court Judge Robert W. Pratt.
The important point here is these are cases in which there is absolutely no reason to think the suspects actually ever touched a child, only that they possessed images.
In possession cases where there is no evidence that defendants sought to abuse minors, several judges are giving much lower sentences than the guidelines intend, which they are allowed to do if they believe the recommended punishment doesn't fit the crime...
William Griesback, a federal judge in Green Bay, Wis., wrote: "The fact that a person was stimulated by digital depictions of child pornography does not mean that he has or will in the future seek to assault a child."
Certainly, the point of these judges is not that possessing child pornography is tasteful or laudable, just that automatically handing out decades in prison for mere possession is vindictive. And such vindictiveness has no place in a democractic and thoughtful America.
Also see this article in the New Times Magazine called "The price of a stolen childhood" NYTs ICP and Restitution 1-24-13.pdf" By Emily Bazelon