Jacob Sullum on misguided child porn laws

In the Washington Post, Jacob Sullum talks about child porn laws.

The legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. In a 2009 analysis, federal public defender Troy Stabenow shows that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years.

True. One need not look far or long to find cases in which actual molesters are given much less prison time than those convicted of child porn offenses.

Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years — the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet nowadays is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking.

Hmm. People in prison for receiving images downloaded without their knowledge through peer-to-peer file sharing may want to quibble with Sullum when he implies that the download must be deliberate in order to qualify for the charge of receiving. I would also be willing to bet that many, many inmates doing time for possession or receipt had no idea that Web browsers automatically make copies of visited sites. Most people do not understand the caching of temporary internet files.

Sullum discusses the probable reason for increasingly severe sentences for child porn offenses.

While the original justification for criminalizing possession of child pornography was that demand creates supply (an argument that has been weakened by the shift to free online distribution), the escalation of penalties seems to be driven largely by the assumption that people who look at these images are all undiscovered or would-be child molesters. ...

Even allowing for the fact that many cases of sexual abuse go unreported (as indicated by victim surveys), it seems clear that some consumers of child pornography never abuse children. “There does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending,” says Karl Hanson, a senior research officer at Public Safety Canada who has co-authored several recidivism studies.

It is clear that those convicted of child porn offenses are doing time for what the courts and legislators fear. Courts fear the defendants molested children but were never caught and courts fear the defendants want to molest children if they haven't already.

Here's the thing: All the research about whether child porn consumers did or didn't molest children--as interesting and reassuring as it can be--should have nothing to do with the sentences handed down for non-production child porn offenses. If the defendant molested children, the prosecution should find the evidence to prove that. Until then, his offense is downloading or possessing illegal images and nothing more.

In fact, it is not clear why mere possession of child pornography should ever be grounds for locking people in cages. The Supreme Court’s main rationale for upholding the ban on possession was that demand for this material encourages its production, which necessarily involves the abuse of children. But this argument has little relevance now that people who look at child pornography typically get it online for free. Furthermore, people who possess “sexually obscene images of children” — production of which need not entail abuse of any actual children — face the same heavy penalties. “They are not protecting a single child,” Boland says. “They are throwing people in prison for having dirty thoughts and looking at dirty pictures.”

Our prisons are already overcrowded; now is a good time to reconsider child porn sentences because the number of people doing time in prison for thoughts and pictures is growing.  We do not put people in prison for imagining violent robberies or for owning a photo of a violent robbery. The parallel is obvious.

So is the insanity of punishing people for crimes for which they have not been charged.