Author John Grisham thinks Child Porn sentencing laws are too harsh, citing the case of a “good buddy from law school” who got nailed in a child porn sting:
“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.
“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.” [...]
Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.
“I have no sympathy for real paedophiles,”he said, “God, please lock those people up. But so many of these guys do not deserve harsh prison sentences, and that’s what they’re getting,” adding sentencing disparities between blacks and whites was likely to be the subject of his next book.
Peter Foster, the author of the article, cites some interesting data:
Since 2004 average sentences for those who possess – but do not produce – child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission.
A big question here is whether harsher sentences have a deterrent effect in child porn cases. A common way to determine whether harsher sentences deter crime is to look at the relevant data, and see if the number of associated criminal offenses went down after the harsher sentence was enacted into law.
In most government crime reports, we will see a snapshot of one of four categories: (1) reported crimes, (2) arrests made, (3) convictions, or (4) sentencing. All of these categories have analytical limitations. Nonetheless, it’s often the best we have to work with. Most people go with “reported crimes” as their preferred category. Just because a crime is reported doesn’t mean one was actually committed, but for most people, it’s the closest we can get to splitting the difference between the real number of crimes committed, and what the government actually knows about. And if harsher sentences deter people, then surely we would expect the number of reported crimes associated with a harsher sentence to decrease.
So have child porn cases decreased alongside harsher sentencing laws? Not in the slightest, according to the U.S. Sentencing Commission:
The number of cases in which offenders have been sentenced under the non-production guidelines has grown substantially both in total numbers and as a percentage of the total federal case load. As reflected in Figure 6–1, in fiscal year 1992, there were 61 R/T/D cases, which increased to 813 cases in fiscal year 2010. In fiscal year 1992, there were 16 possession cases, which increased to 904 cases in fiscal year 2010. In fiscal year 1992, non-production cases accounted for 0.2 percent of the 36,498 total federal criminal cases. By fiscal year 2010, such cases accounted for 2.0 percent of all 83,946 federal criminal cases.
Here’s Figure 6-1 from the report:
As you can see, from 2004-2010, the number of people sentenced under the harsher federal child porn sentencing guidelines has gone up steadily. If harsher sentencing deterred child porn offenders, you would expect the number of child porn cases to decrease. Instead, they actually increased.
Now, it’s possible that the reason for this increase is that federal law enforcement agencies decided to increase the amount of manpower and resources they dedicate to child porn investigations. That would predictably lead to more convictions. The other possibility is that the number of offenders has increased due to the expansion of technology and internet access over the last decade. It is arguably easier now than it’s ever been to create, distribute, and access media that constitutes child pornography under federal law. As a result, it’s possible that harsher sentences have deterred some potential offenders, but that the sheer number of new offenses generated by expanded technology and internet access has overshadowed the deterrent effect, leading to a net increase in child porn cases on an almost annual basis since 2004.
It’s hard to say whether any of this is true or not. We could look at the FBI’s budget appropriations, and I honestly don’t see anything that would suggest a significant realignment of resources towards child porn cases. The second possibility is a bit harder to analyze, because it’s impossible to go out and interview every potential child porn offender to see if they were deterred by the sentencing guidelines. So all we really have here is data points and a correlation, but not much in the way of extrinsic evidence that would help us tease out a cause-effect relationship.
What we do know, however, is that harsh sentencing has completely failed to deter drug offenders, and has arguably failed to deter capital crimes. In light of this, we have to ask ourselves whether there’s something special about child porn offenses that would make harsher sentencing a more effective deterrent than it is for drug offenses and capital offenses. If anything, given that Pedophilia is properly understood as compulsive behavior, harsher sentencing would be less likely to deter child porn offenders than members of the other groups (most drug offenders are not addicts). And in the case of “incidental” offenders like John Grisham’s law school friend, we’re looking at people who, like most of the general population, aren’t all that familiar with the U.S. sentencing guidelines to begin with, so it’s highly unlikely that those guidelines would have any deterrent effect on them either.
So while many peoples’ instinct is probably to recoil from John Grisham’s suggestion that we should go “easier” on child porn offenders (specifically those who consume it rather than create it), he’s certainly right about the fact that the U.S. has an incarceration problem, and that harsher federal sentencing schemes have contributed to it. It’s also true that in most cases, harsher sentences don’t seem to deter people. They do, however, ruin a lot of peoples’ lives due to mistakes that don’t always warrant an extraordinarily harsh punishment (if you’ve never been to prison, I can assure you that a year in prison is a very, very long time).
If you don’t agree, consider this: The purpose of child porn laws is to protect children from sexual abuse. John Grisham’s law school buddy was supposedly sentenced to three years in prison for looking at pictures of 16-year old girls. The age of consent in 32 states is 16. So in most of the country, John Grisham’s law school friend could have legally had sexual relations with a 16-year old girl, but under federal law, he can’t look at a picture of them naked.
That’s clearly absurd. And it’s a big part of why John Grisham is right. Everybody wants to protect children from being victimized by sexual predators. The question is whether the sentencing guidelines we have in place actually keep sexual predators off the streets (or at least deter them from victimizing anyone). In some possession cases (certainly not all of them, but some), courts aren’t dealing with the demented sexual predators we generally envision when we discuss sex crimes against children. They are dealing with relatively normal people who got caught up in a draconian sentencing scheme that punishes people for something that—in the case of John Grisham’s law school friend—they could have done legally in person in most U.S. jurisdictions. Other cases may simply involve a singular lapse in judgment, or worse, an honest mistake about the propriety of the material they were viewing.
Putting someone like that in jail for three years is not justice. It’s crazy. And the federal sentencing guidelines should reflect the distinction between a person who once viewed suggestive photos of 16-year olds, and a person like Jerry Sandusky, who physically violated and victimized a countless number of young children before he was finally removed from society.