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 Arizona (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 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 actually 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 Texas, 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 democratic 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
OverthrowSentencingGuidelines – October 29, 2011 9:56 PM
How is viewing these acts MORE a crime than actually participating in them? How are rapists and murderers given LESSER sentences than possession of photo or video? I am at a complete loss of 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 possession 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 net 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 counseling. 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 adult’s 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 trial 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 lifetime 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 to 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 pedophile 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 of 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 freak decided to abuse a child and that 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 were 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?
Duane I – August 13, 2014 8:32 AM
For 32 years, attorneys have misconstrued what the U.S. Supreme Court has said about child pornography(hereinafter CP): that, unlike adult porn, it can only be prosecuted as a series of crimes committed against a child victim. The crimes which must be proved include: the sexual exploitation of the child and the making of a visual record of that exploitation; the distribution of the specific CP for viewing by others, thus perpetuating the exploited child’s injury; and receipt of the specific CP by someone being prosecuted separately for possession of the specific CP. It also must be proved, via a prior conviction of the CP’s producer, that the recipient/possessor’s acts satisfied criminal laws scienter requirement. That the crimes are committed against a child victim invokes the 6th Amendment’s requirement that the crimes can only be prosecuted in the jurisdiction in which they occurred. The same jurisdictional requirement applies to federal prosecutions via the Constitution’s Article II, section 2. To provide the requisite proof of jurisdiction as an element of the crime and comply with the 6th Amendments witness confrontation/cross-examination clause, the prosecuting entity must produce the injured children at trial.
Hubris will prevent most attorneys from re-reading N.Y. v Ferber, Osborne v Ohio, and Ashcroft v Free Speech Coalition to ascertain the correctness of the preceding statements. That redounds to the ignominy of the entire legal profession, because it enables the continuation of the illegal prosecutions for CP possession occurring in every jurisdiction in the country. I’ll supply gratis to anyone wishing it the case law backing the foregoing.
Duane I – August 13, 2014 6:02 PM
As for Arizona’s laws regarding CP prosecutions, when properly construed as enabling prosecutions only when all of the CP-involved serial crimes committed against a child victim are proved to have occurred in Arizona, they align perfectly with the precepts delineated in N.Y. v Ferber, Osborne v Ohio, and Ashcroft v Free Speech Coalition. Although the proof of that statutory intent, including supporting U.S. Supreme Court case law, is beyond the scope of this forum, it’s available from me to anyone who asks.
If you still doubt the jurisdictional requirement of a crime committed against a child victim read 13-705, the law being used illegally by Arizona’s judiciary for sentencing CP possessors. At 13-705(P)(1), it defines the crimes for which it prescribes sentencing as those committed against a minor. Second-degree murder is listed as such a crime at 13-705(P)(1)(a). Ask yourself: if an Arizona resident murdered a child in Ohio, could the state of Arizona prosecute its resident for that crime?
Anna W – December 10, 2014 5:57 PM
My 12-year granddaughter left her email site up. And I saw that some older guy was trying to get her to send him nude pic’s. I was so upset I told my husband and my daughter. To make a long story short my husband decided to get to the route of it. He tried to find this guy. But he went to far And pretended to be her to flush this guy out. Then he was sent pictures So he threatened the guy and left it at that. I told him to just get of and delete the pics. And leave it alone. But the pic’s kept coming. So he threw out the comp. Trouble was they new his email at work. And the tech guy saw them and he was fired.
Then one morning the police came to the house for a raid. I was the only one there. It was so awful, and even though the police were polite to me, it was still awful to have your house turned upside down. I wasn’t allowed to move.
The police asked me if I knew what he was up to and I told them he was looking for this guy. They told me it doesn’t matter if he even has one pic he will be prosecuted.
Oh, he was given a 15-month jail sentence. But since then I have been shunned by everyone. Including my whole family. The police told my family he was a pedophile. I know what he did and why. He should have left it alone I know that. But he was also in the Army for 20 years trained to protect. Even all the therapist have said he is not interested in kids but went to far to protect his family.
I am put in the position of my husband or family. How do I choose!