let the debate rage on

With judges dissatisfied with the current U.S. Sentencing Commission guidelines, there is much debate about sentencing for child porn offenses.

On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child. In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high. Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes.

This sounds encouraging. If it is recognized that looking at child porn can be punished with sentences more severe than those given to people who actually sexually abuse children, then the conversation has begun. It simply is not logical that looking can draw a longer sentence than doing.

On the other hand, some prosecutors and members of Congress, as well as advocates for sexual-abuse victims, oppose any push for more leniency. At a public hearing in February, the Sentencing Commission received a victim's statement lamenting that child pornography offenders "are being entertained by my shame and pain."

"They need to be taught how much pain they inflict and a greater term of imprisonment will teach them that, (and) will comfort victims seeking justice," the victim said. "I don't believe that short periods of imprisonment will accomplish these things."

I have said it before and I will say it again: To experience sexual abuse as a child and to know that images of that abuse are still floating around the Internet must be excruciating. As in every painful circumstance we encounter, each victim deals with the abuse in his or her own way, so there must be as many reactions and coping methods as there are victims. The feelings of these people must be intense, no matter how they choose to deal with those feelings. 

Do we sentence defendants based on the intensity of the victim's reaction? One problem with that approach is that in most cases, matching defendant and victim in child porn cases is impossible. Identifying the children in the videos is rare. The children could be anywhere in the world and the abuse could have happened decades ago. Another problem is that ascertaining the intensity of the victim's feelings is subjective. There is no logic in this kind of thinking; it is all emotion.

Thinking that all victims feel the same way about their victimization and about punishment seems presumptuous. To hand down a severe sentence because we assume that the victims will feel better when that happens, is like shooting in the dark. How can we be sure we know the feelings of the children in these particular images?

In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former federal prosecutor Linda Dale Hoffa criticized the approach by Congress.

"The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote. "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders." 

Hoffa doubts Congress will be eager to ease the guidelines.
"If you vote against these harsher penalties, the sound bite is that you're protecting child pornographers, and that could be the end of somebody's career," she said in a telephone interview. "It's a political radioactive hot potato."

And there lies the problem. Sex offenders, no matter what their offense, are easy to ignore and easy to treat badly because almost no one wants to stand up for them. No one wants to be seen as sympathetic to the sex offender, today's pariah. Elected officials have the added difficulty of wanting to win the next election, making it "impossible" to speak out in favor of more lenient sentences.  

We need to push them to do the right thing, even when it makes re-election difficult.