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
Comments (4)
Read through and enter the discussion by using the form at the endOverthrowSentencingGuidelines - October 29, 2011 9:56 PM
How is viewing these acts MORE a crime than actually particpating in them? How are rapists and murderers given LESSER sentences than possession of photo or video? I am at a complete loss in faith in our justice system. The mere possession should not be given a harsher sentence. This is like saying if someone has a movie or picture of a murder or a pocket full of bullets, they are going to be a murderer. Why isn't that a crime too?
The sentencing guidelines for possesion of a picture are ridiculous and unjust. Shame on our system for putting people in prison for life when they have never hurt or touched anyone!
Mark - November 11, 2011 2:02 PM
My brother is in this situation.
He was a highly gifted child, and at his high school graduation was said to be the most "decorated" student in the history of the school. Excelled at university and went on to teach at a private school where he was one of the most popular teachers. Very involved in his community.
Was charged with possession of child pornography. Loads of pictures on a CD. Despite the natural revulsion to this sort of crime he was supported by many of the parents at his school. "Best teacher my child ever had."
Although this took place in the US my brother, our family, are originally from Canada. A couple of the parents flew down to his sentencing to give support. As did his large supportive family -- there to show the support and safety network to see him rehabilitated.
No criminal record, to the contrary his life had been one of contribution. However, because of the mandatory minimums has been sentenced to nearly 30 years.
No one disputes how deplorable child pornography is, and how wrong it is to have such pictures. But to destroy someone’s life for mere possession? In Canada, we regularly see serial murderers and rapists get sentences far less than my brother has merely for possessing pictures. It just makes no logical sense to me whatsoever.
FYI I am a lawyer myself but practicing overseas. I would be interested in whether there are any efforts being made to review the sentencing laws-though I expect it is too late for my brother.
Cindy - August 26, 2012 12:44 PM
I agree with a Felony on record and Minimum sentencing of 10 years in prison or put them in for psychiatric counsilling. Why would anyone want to see a child abused. It is against the law, it is outside of every human being to protect children. There should be no excuse. Do not do the crime if you do not want to do the time. Our society has become so depraved because of excuses. They must stop.Be responsible for what you decide to do. The children are suffering for the adults stupid decisions. It is like drugs...Mexico blames Americans for wanting them????? Where are the God fearing people America should have to protect the innocents?????
Charge with child porn - February 5, 2013 8:30 PM
I am facing possession charges and I am scared to death. I feel that it is impossible to get a fair trail especially with the sentiment of the public being so negative. Additionally I have found it utterly confusing that if I take a plea deal I can get 3 months but if I stand for my rights and go to trial I can get years in jail and whatever additional charges the prosecution wants to add.
Moreover, the bar of possession is so low that it is almost impossible to defend against. Yet the consequences of the failure mean years in jail and life time of being labeled a sex offender. This is only for possessing pictures. The wacky concept that every time somebody views the photo the kid is abused again is an insane concept. Seriously follow the logic, does the picture of the atom bomb exploding over Japan incinerate the Japanese over and over again? An additional insane argument is that the market feeds the abuse; in cases where people pay for this I understand that argument but haplessly having this on the computer contributes to no abuse at all.
I am not defending child porn, but the arguments made around it are mere emotion and have no basis in reality.
Yes, as mentioned I have been charged with possession and that leads me to another point. My nightmare with this began when I found out my wife was cheating on me and had been doing so for three years. We fought over the next three months and as I found out more and more information and after consulting with professionals, I told her it was over but that I wanted custody of my sons. This started a vitriolic situation to even get worse. Over the course of these months, I talked to friends, medical professionals and even counselors because I was being threatened with her taking away my sons from me; I wanted the divorce but I was afraid of her threats.
So, when I finally got the strength to leave and had all my evidence against her in order; She left me and my sons for a number of months to run off with her lover to Finland, she abandoned us and I was going to use that to get custody of my sons.
The next thing I know, I had the police arresting me and charging me with Child Porn possession. Apparently my wife, called the cops shortly after I told her the above statement and told them I was interested in Child Porn. Then had the cops come out to the house to see it on my computer. The first time they came, unknown to me, they found nudist images and not child porn. So she waited a week, called the cops again and this time it was enough for them to arrest me and seize the computers. Now behold there was child porn on the computers downloaded within the three months since my discovery of her infidelity and us fighting over the custody of the children.
So yeah... now I face child porn charges and being labeled a sex offender. I must ask for WHAT! I have never done anything to anybody in my life. Yet here is this garbage in my possession. I didn't download it or acquire it but because it was in my possession, I am doomed. I even took psychological tests showing that I am not interested in children of any age. Yet, that doesn't matter to the courts because it was in my possession.
So please people who call for the long jail time and sexual offender registering tell me how that is fair. You explain to me how even if things do not add up to my character or online behavior that I get labeled like this and thrown in jail?
I agree that people who abuse children and support the abuse of children should be punished. Yet for men and maybe women who find themselves in my situation blanket opinions about guilt and the willingness of folk to just throw people in jail and throw away the key is scary and akin to the witch trials of the past.
To convict somebody of being a peadofile or threat that needs to be locked up because, people find it disgusting, and they are presumed to be a threat based on the fact that child porn was in their position is not JUSTICE - It is criminal. There should be proof to support that assumption which goes beyond mere position; one thing does not equate the other. There also should be proof that shows that this person charged actually actively sought out the material, shows sexual interest in children, that they indeed downloaded the material.
Yet the ways that the laws are written, people in possession are doomed from the onset despite the fact how it got there. This is wrong!!! There should be a scientific and common sense approach to these laws. One size does not fit all. You are ruining peoples lives for nothing more than mere disgust that some sick frak decided to abuse a child and those picture ended up on somebodies computer.
I am angry, I wanted nice life with my sons, wanted to work hard and contribute to society but instead I get shunned, my sons taken away and discriminated against when trying to get a job. Why because some spiteful person placed child porn on my computer. So where is the Justice in that?