questioning child pornography laws

It isn't enough to sit back and assume that those making the decisions about law and punishment are doing it effectively. Thinking citizens must question and they do. Arguments about effective laws and proper consequences are a permanent fixture in our national discourse.

There is a robust debate about the laws governing copyrights. The death penalty continues to generate controversy because people have such strong opinions about it. Immigration law inflames opinions on both sides of the issue. Nearly everyone has a firm idea about whether abortion should be legal or not. People feel strongly about whether red light cameras are a good way to stop people from running red lights.

Examine the state of the justice system to see if it does more harm than good. Should X be against the law? Should Y be the punishment for breaking the law? These are fair questions.

These are the questions I ask about child pornography laws. Questioning child pornography laws does not say child porn is acceptable any more than questioning drug laws says it is acceptable for someone to use cocaine.

When Congress questioned the disparity between sentences for powder cocaine offenses and crack cocaine offenses and then took action to lessen the disparity, they were not approving the use of cocaine in any form.

It makes sense to look at drug laws and consider carefully whether those laws and those consequences are doing anything to diminish the use of illegal drugs. Our prisons are full of people convicted of drug charges and each inmate costs us around $26,000 a year to house. Families and whole neighborhoods are torn apart because so many people are doing time or have done time because of drug charges. Gang violence flourishes because gangs rule the underworld where the drug industry operates. After spending $51 billion annually to combat illegal drug use, illegal drugs remain readily available.

The United States is headed toward the same wild spending to prevent something equally impossible to control with laws: availability of child pornography.

Why is child porn illegal? If it is illegal because we think the laws will stop people from looking at child porn, we would see decreasing numbers of child porn convicts instead of increasing.

If it is illegal because the person looking at a photo harms the person in the photo, photos of other crimes would cause distress worthy of prison, too.

If it is illegal because the idea of someone using child porn is so appalling that we want to punish that person for doing something abhorrent, we are formulating laws based on emotion instead of reason.

It is hard not to react emotionally to the thought of images that involve very small children or images of violent crimes. Images that a 17-year-old might send to a 19-year-old boyfriend or girlfriend, however, rarely enrage people. People generally think the teen was foolish and would agree a prison sentence is not warranted and yet those images are considered child pornography, too.

In the movie Crazy, Stupid Love, a high school girl takes naked pictures of herself to send to a an older man. The photos are intercepted by the the girl's mother and much hilarity ensues. The audience finds it funny to think of the girl doing such a foolish thing and they find the parents' horrified reactions funny.

In real life, the parents could go to prison for possessing those photos of their daughter. In real life, the daughter could end up on the sex offender registry for producing child pornography.

Is that really what we want the laws to do? This is a question worth discussing.

If someone goes to a counselor and asks for help to stay away from child porn, the counselor is mandated to report that person to law enforcement. Is this what we want the laws to do? Wouldn't it be better to encourage child porn users to avoid using child porn and let them get help to do that? It would certainly save taxpayer money to keep them out of prison.

If the goal is to diminish the availability of child pornography, laws prohibiting child porn don't work. That much is clear. No matter how many people are incarcerated for possessing, receiving, or distributing child porn images, the images are still there. Again: Why are the images illegal? What good does the prohibition do?

Prohibiting the images does not prevent child sexual abuse.

Some say that punishment is reason enough to prohibit the images but many--including federal judges who are bound by the mandatory minimum sentences--think the sentences are too long.

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. [My emphasis.]

If we incarcerate people for doing something society abhors--looking at child porn--are we making it easier or harder for those people to rejoin society and its norms? Incarceration isolates. The sex offender registry isolates. Homeless, unemployed offenders are not safer than offenders who have homes and jobs. Do we want offenders to accept societal norms or do we want to encourage them to reject those norms?

Child pornography laws do not diminish the supply of child pornography, do not reduce the incidence of child sexual abuse, do not reduce the number of viewers but only satisfy an emotional need to convey strong disapproval...that approach to lawmaking will not be limited only to child pornography.

What will be the next activity that needs strong disapproval? Will those laws do any good or will they simply fill our prisons as the child porn laws do?