When has a sex offender convicted of possessing child pornography paid his debt to society?


It is the natural response upon hearing of children being sexually abused to immediately recoil in fear, disgust and harsh judgment. The question being asked in courts across the country is whether those who simply possess child pornography less blameworthy than the actual abuser? Should they be punished with the harshest prison sentences, even if they never had any real contact with a child?


Families Against Mandatory Minimums (FAMM) reports that federal child pornography sentences have increased 500 percent in the last 15 years. That’s because any violation of a federal child pornography law mandates severe statutory penalties.


For example, a first time conviction for production of child pornography is a minimum sentence of 15 to 30 years in prison. A conviction for receiving or transporting child pornography in interstate or foreign commerce imposes a minimum sentence of 5 years to a maximum of 20 years in prison.


IN 2010, the Dallas Morning News reported that, in the preceding three years, more federal child pornography prosecutions were initiated than federal prosecutions for bank robbery, bank fraud, mail fraud or wire fraud. During the decade between 2000 and 2010, federal prosecutions for child porn in Texas, as well as nationwide, more than doubled.


The Texas situation has not changed much since the 2010 Morning News report. For example, this past June U.S. District Court Judge Barbara M.G. Lynn sentenced a Dallas man to 336 months (38 years) in a federal prison for various child pornography offenses. The offender is 44 years of age, and since the federal system does not have parole, he will be nearly 80 years of age before becoming eligible for release under federal goodtime statutes. In effect, the federal judge imposed a life sentence on the offender.


These kinds of extreme sentences have prompted an increasing number of federal judges and attorneys that work in the federal courts to question the appropriateness of such sentences.


Harsh child pornography sentences, like the one imposed on the Dallas offender, are premised on the faulty notion that those who view child pornography are actually child molesters. This belief defies the empirical data and research put together by reputable sources. For example, in 2013 the U.S. Sentencing Commission sent a report to Congress titled: “Report to Congress: Federal Child Pornography Offenses (2012).” This report informed Congress that “not all child pornography offenders are pedophiles or engage in other sex offending.” In fact, the Commission found that only one in three child pornography offenders engaged in what the Commission deemed to be “sexually dangerous behavior.”


In 2012, one U.S. District Court in Ohio specifically rejected the notion that viewing child pornography is tantamount to pedophilia, saying “the “empirical data strongly suggests that viewing child pornography does not equate to child molestation.”


Similarly, a U.S. District Court in New Mexico refused to accept the Government’s argument that a stiff prison sentence in child pornography cases is appropriate because of the “chance that [the offender] will molest children in the future, or that he has in the past.” The court said such “speculation” defied the actual evidence in the record, pointing out that the offender “had never been accused of hands-on abuse.”


It is rare that the people who produce child pornography are brought to justice—much like the leaders of drug cartels— therefore, to lower the demand side, many courts elect to punish the consumers of what has been labeled “toxic material,” much like they do the users of illicit drugs. This attitude is based on the irrational belief that if you eliminate the consumer, there will be no producer.


This faulty premise defies the very basis of capitalism; that it is the producers that create consumers. People were just fine with the horse and buggy before Henry Ford gave them the Model A.


However, it is encouraging that some courts are becoming more enlightened. In 2009, a federal district court in Wisconsin observed that courts “should not assume that a [child pornography] defendant has or will commit additional crimes without a reliable basis;” and another federal district court in New Jersey said courts should not make child pornography offenders the “surrogate for the monsters who prey on child victims through actual contact.”


There is a sound basis for this emerging judicial awareness. A private, nonprofit organization established by Congress in 1984, the Center for Missing and Exploited Children has found that approximately 35 percent of the “depraved” producers of child pornography are a parent of the child while another 28 percent are either neighbors or a trusted family friend. So the widespread belief that the producers of child pornography are stranger “child molesters” trying to create more stranger pedophiles is simply not supported by the evidence.


The undeniable fact is that the technology of the Internet has made child porn more available and easier to access.


So what to do with those who simply possess or view child pornography?


Certainly mandatory incarceration should not be the sole legitimate penological option. Home detention, strict community supervision, mandatory counseling and restrictions to some Internet access are certainly less expensive, and just as effective, as handling these offenders through mandatory incarceration.


Child porn viewing, even when its an addiction, is not tantamount to pedophilia; and the sooner our justice system accept this reality, the quicker it will be able to respond to the problem of child pornography in a rational, humane manner.


This approach would certainly be more humane and produce a more positive result than the present approach—an approach whose results were described in an April 2014 HuffingtonPost piece by Andrew Extein and Galen Baughman:


“So what happens when someone is arrested for possession of child pornography? They feel as if their lives have been ruined, that there is no going back to a normal life, no way out, no hope for understanding or empathy from anyone in their lives. They are immediately fired from their jobs. Human relationships crumble, and families are shattered. They are almost invariably convicted and sent to prison and are often placed in solitary confinement, which may be physically safe but can be psychologically damaging. In prison, child pornography offenders are the lowest on the totem pole, both ostracized and targeted. They are often subjected to abuse from inmates and staff alike and are sometimes even killed.”


Certainly, as a society, we can do better than this.