Fed. Judges Complain About Child P*rn Sentence Lengths

In hearings this year before the Sentencing Commission around the country, federal judges have been complaining about the excessive sentencing guidelines for possession of child p*rn.

Judges, for the most part, have based their argument on a belief that some of the defendants who view child pornography have never molested a child or posed a risk to the community and may be better served by treatment rather than prison.

As federal guidelines now stand, the number of images and the way the contraband is obtained enhance prison terms. A first-time offender with no criminal history can be sentenced to 10 years in federal prison.

In one case currently pending before a Colorado federal judge who has granted non-guideline sentences of probation to two such defendants in the past, defense counsel argues: [More...]

"For at least one year and possibly longer, the defendant, in the privacy of his small condominium, used a single computer to download child pornography," Golla wrote. "He never chatted with anyone on the Internet regarding the images he possessed, never used the material to entice a child, nor did he produce, distribute, or trade any of the images. Mr. Ilgen has never had inappropriate contact with a child."

Several judges are balking at the long guidelines:

Federal judges from Hawaii, New York and Oklahoma have made similar gripes to the commission.

"It is too often the case that a defendant appears to be a social misfit looking at dirty pictures in the privacy of his own home without any real prospect of touching or otherwise acting out as to any person," U.S. District Judge Robin J. Cauthron of Oklahoma City said in her testimony to the commission. "As foul as child p*rnography is, I am unpersuaded by the suggestion that a direct link has been proven between viewing child p*rn and molesting children."

It wasn't always this way:

In 1995, federal defendants convicted of possessing child pornography were sentenced to an average of 15 months in prison, Ilgen's attorney wrote in court documents. By 2007, first-time child-pornography offenders were receiving 102 months in federal prison.

As for who the guidelines are impacting:

"We do not see producers (of child p*rn) or the parents who sell their children or the stepfathers who attack them," Kane told the commission in October. "What we see are the men on dialysis confined to a wheelchair who spends all of his time confined already and no economic analysis of what it would cost to keep this man in prison."

Kane testified there is no empirical research referenced in the sentencing schemes to indicate whether long prison sentences will stop defendants from re-offending or help them overcome their compulsions by the time they get out of prison.

Treatment is a better alternative. As the father of one defendant sentenced to ten years says:

"I think the thing we really have to do is figure out why. What is different about him that drives him to that? What personality traits? What is the issue here?" Bernie Mrugala said. "To put somebody in jail for 10 years may not be enough if we do not get to the crux of the matter.

"We need the power of the courts to be on our side to help maintain and control the problem to the point where this kid can be beneficial to society."

Here is Judge Kane's opinion (pdf) in the Randy Rausch case sentencing a defendant awaiting a kidney transplant to probation rather than prison. The statute prohibiting the activity is here. A Justice Dept. memo on it is here. The sentencing guideline is here.

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    there is a compelling (none / 0) (#1)
    by cpinva on Sun Nov 29, 2009 at 04:13:35 PM EST
    argument to be made that those who consume the product feed the manufacture of it. quantity supplied is a function of demand and price; eliminate demand, and by the simple rules of econ 101, quantity supplied will decrease.

    that being said, unless you propose to somehow block the internet over the entire world, the odds of significantly decreasing demand, by virtue of imprisoning (at great cost) every viewer of the product in the US, are slim to none.

    we can all see how well that concept's worked for illicit drug use.

    Well (none / 0) (#3)
    by Watermark on Sun Nov 29, 2009 at 10:17:29 PM EST
    If they just get it off of a file-sharing network they're doing the producers no good.  If they actually buy it (or visit some sort of ad-supported site) then they would be feeding demand, however.

    Having the images distributed at all is damaging to the children who were involved in it.  But I still don't think nine years in prison is a proportionate response.  Because of how zany we've gotten with huge sentence lengths in recent years, people seem to be desensitized to the fact the nine years is a substantial, life-destroying amount of time to spend in prison.


    re demand (none / 0) (#5)
    by zaitztheunconvicted on Mon Nov 30, 2009 at 11:28:52 AM EST
    there are large areas of the Net in which a person can view or download or obtain child porn and "child porn" for free.  This is especially true of the "child porn" which is not a depiction of sexual conduct by the ordinary layman's defintion, but which is a minor's going nude, topless or in lingerie, or simply being themselves in front of a camera.  However, the way that states enforce their laws, much of the "child porn" that we could call "soft," is treated in the same way as hard child porn.  Anyway, it is an easy matter to find ways to download hundreds and perhaps thousands of images of "soft" "child porn," for free in various ways.

    and, a certain % of the ordinary US population has probably some "hard" cp on their computers, if they looked at the images of Miley Cyrus alleged to be of her in sexual conduct--which the evidence suggests is real.  By the statute, this would also be called child porn.


    like drug possession... (none / 0) (#2)
    by diogenes on Sun Nov 29, 2009 at 06:52:43 PM EST
    You can put someone away for viewing child porn a lot easier than having to build cases beyond a doubt that the guy molested any given four year old at a given time.  Many nonmolesters would get caught in such a net, but really I don't see the socially redeeming value in their looking at pictures of 8 year olds being violated on the web, much less paying for those webcam sites when you can tell the eight year old on the other side what to do.
    And given the rates of incest/child sexual abuse in this country, I suspect that the judges who think that some of these offenders are "low-risk" would be surprised at the truth.

    Well (none / 0) (#4)
    by Watermark on Sun Nov 29, 2009 at 10:21:47 PM EST
    You can argue that, but you can argue it the other way (that there are very few actual molesters amongst the lot) just as well.  What I'm not seeing is evidence one way or the other.  

    And maybe there would be a way to differentiate high and low risk offenders and sentence appropriately if there is some sort of divide, instead of treating them all the same?