Are the laws surrounding possession of child pornography draconian and over the top? Are the sentencing guidelines and the resulting sentences for possessing child pornography excessive? At least one federal judge may believe so. In a recent New York Times article (http://www.nytimes.com/2010/05/22/nyregion/22judge.html) , Judge Jack B. Weinstein of the United States District Court in Brooklyn, New York (http://www.nyed.uscourts.gov/index.cfm), explained his reasoning. While he obviously does not approve of child pornography, he believes that defendants accused of mere possession, as opposed to those who produce and distribute the offensive material, are no threat to children and should be receiving treatment instead of lengthy prison terms.
Judge Weinstein refused to sentence one defendant to the recommended 11- to 14-year prison term by the sentencing guidelines, or even to the statutory 5- year mandatory minimum, for his collecting graphic child pornography. Judge Weinstein is apparently not alone. According to the article (http://www.nytimes.com/2010/05/22/nyregion/22judge.html), more than half of all child-pornography cases result in a sentence lower than the recommended range.
One of the reasons for imposing harsh sentences on end users of child pornography is the belief that their use victimizes the children who have been used to produce this offending material. But in a recent brief, attorney Mark J. Mahoney of Buffalo, NY called this belief nonsensical: an end user who obtains a “copy of one of those photographs, obtained for free over the internet, existing on a computer, [does not] add[ ], even infinitesimally, to the suffering experience of that victim, especially in a way justifying imposing additional punishment.” Mr. Mahoney and I agree that the real culprits are the people producing and distributing this information, not an end user who happens to click on an offending picture while on the internet.
Additionally, long prison terms are not the only punishment for these end users. Recently, courts are imposing excessive restitution orders (http://www.nbcconnecticut.com/news/local-beat/Man-With-Child-Porn-Must-Pay-Victim-.html) for mere possessors to the “victims,” whose actual abusers have long since been punished for their crimes. One court ordered $200,000 in restitution for possessing pictures of an abused girl, more than 10 years after the abuse. The parties later settled for $130,000.
Of course, we as a society need to protect our children against predators and abusive adults who seek to profit from their puerile eroticization. But decades-long prison terms, multiple hundreds-of-thousand dollar restitution orders, and the false belief that mere possession of these materials further victimizes such children is unwarranted, and simply satisfies some Prosecutor’s “blood lust” to lock offenders away without regard to whether the punishment fits the crime.
Mark A. Satawa is the founding partner at Satawa Law PPLC, in Southfield, MI. He practices in the area of criminal defense, specializing in defending sex crimes, child molestation, internet stings, and child pornography. He is a contributing author in the book, INSIDE THE MINDS: STRATEGIES FOR DEFENDING INTERNET PORNOGRAPHY CASES (Aspatore 2008).