Are We Going Too Hard On Kiddie Porn Possessors?

Few are going to stand up in support of kiddie porn, even when it’s art. Last year, the Tate Modern proposed displaying a nude portrait of Brooke Shields at age 10. It caved on those plans after objections from the “obscene publications unit” of the London Metropolitan Police, according to Caveat Viator.

Caveat Viator offers a link to the portrait, but we’d advise against checking it out. (Go watch The Blue Lagoon instead.) Cyberlaw professor Eric Goldman calls child porn “toxic,” noting that “there is no easy way to legally cure even a single download of child porn.”

Even if it’s part of your “academic research.” A New York professor considering writing a book on how to define child porn is now serving a prison sentence because of images he downloaded in the course of his research, and images left in his cached folder from Web-browsing kiddie porn sites.

Sentences range. That professor got a one-to-three year sentence, while an Alabama man with an underage porno video discovered on his computer by the Geek Squad got 10 years, as we mentioned last week. That’s for hitting download and play, not for firing up a camera and hitting record. Is that a fair sentence, or are the penalties for kiddie porn possession too exxxtreme?

Some judges believe that child porn possession penalties are too harsh. Federal judge Jack Weinstein told the New York Times earlier this year that it’s an example of “the unnecessary cruelty of the law.”

[T]he recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.

Judge Weinstein has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography.

“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children. “We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

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While it’s not very tempting to get behind child porn lovers, Weinstein is not alone in the judicial ranks. From a January article in the Wall Street Journal:

For years, federal sentencing guidelines have provided that someone convicted of downloading child porn would receive a minimum of five years in prison, plus extra time for, among other things, using a computer or having more than 10 images. Judges were rarely able to deviate from the guidelines. But Supreme Court rulings in 2005 and 2007 effectively made the guidelines advisory, not mandatory. Now, judges increasingly are giving prison terms for child porn that are lower than the range recommended by the guidelines.

In the 12 months ended September 2009, federal judges gave prison sentences below the guidelines in 44% of cases in which individuals obtained child pornography or shared it with others, up from 27.2% two years earlier.

(That’s viewers, not creators. So Arnold & Porner associate Joshua Gessler, who allegedly arranged a rendezvous with a 15-year-old prostitute to snap photos, could be out of luck if convicted.)

Child advocates object to this leniency. Some see child porn possession like marijuana: a gateway to more serious crack use.

Politicians, even those who support child porn, are reluctant to support child porn possession leniency. “Why do we permit lawmakers, most of whom would probably wet themselves if they ever darkened the door of an actual courtroom, to belch out mandatory minimum sentences for offenses as though they were passing out government contracts to favored constituents? It’s too easy for them to pander to angry voters, especially when it comes to folks stigmatized as sex offenders,” writes Norm Pattis in the Connecticut Law Tribune.

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What say you? Should we go easier on those whose hard drives harbor disturbing minor material?

‘I Was Doing Academic Research’ Not an Adequate Defense for Child Porn Possession [Forbes]
Judges Trim Jail Time for Child Porn [Wall Street Journal]
Defiant Judge Takes On Child Pornography Law [New York Times]
Judge Not Comfortable With Child Porn Sentence [Connecticut Law Tribune]

Earlier: Child Porn Found by the Geek Squad Can and Will Be Used Against You in a Court of Law
Lawyer of the Day: Arnold & Porter Associate Accused of Kiddie Porn Production

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