Section 1466A(b)(1) & (d)(5) of Title 18, United States Code, makes it a criminal offense to knowingly produce, distribute, receive, or possession with the intent to distribute a visual depiction of any kind, including a drawing … that … (1)(A) depicts a minor engaging in sexual explicit conduct; and (B) is obscene.
Contraband in prison generally invokes thoughts of hand-crafted weapons, illicit drugs, cellphones, prison “hooch,” or non-commissary food items. Black-marketed child pornography in the cellblock does not come to mind.
Seagoville, Texas is located primarily in Dallas County with a small portion of the city spilling into Kaufman County. It is known more for the low security male federal prison located there than anything else.
Contraband in Prison
In 2015, an inmate at Seagoville serving sentences for child pornography offenses decided he wanted the very contraband that sent him to prison in the first place. Demand produces supply under the most extraordinary circumstances. Danny Borgos either commissioned or procured hand-drawings and comic books of children engaged in explicit sexual conduct.
Prison Artist Draws Images of Child Sexual Abuse
Apparently John R. Farrar and another enterprising inmate artist realized there was a market for child porn among those inmates in the facility convicted of child pornography-related offenses. Borgos made some purchases of their illicit contraband. The seized material, discovered through a routine search, was turned over to the local U.S. Attorney’s office who, after conducting a Miller test review, decided the renditions had no serious artistic value and constituted obscene visual representations of sexual abuse of children in violation of § 1466(A). That review resulted in the indictments of both Borgos and Farrar.
Borgos pled guilty and received a ten-year sentence for possession of the drawings, including a 37-page comic book—twice as much as the 5-year sentence he was serving—while Farrar entered a plea of nolo contendere to possessing six obscene drawings depicting children engaged in explicit sexual activity and also received a 10-year sentence. The 10-year sentences the court had to impose on repeat child pornography offenders under 18 U.S.C. § 2252(A)(b)(2).
Ten Year Sentence
Farrar sought appellate review of his sentence before the Fifth Circuit Court of Appeals. He argued that his 10-year sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment because it is “more severe than others for more serious offenses, asserting his sentence is greater than if he were: a producer of the images (even though he admits writing the two hand-written books), a non-recidivist who brought the images into a home with children, a creator of an ‘animal crush video’, a seller of obscene material on Government property, a transporter of such material, or an importer of it.”
On November 29, 2017, the Fifth Circuit rejected this argument, finding:
“Farrar’s list of worse crimes fails to recognize Congress’ obvious discretion to impose harsher sentence for repeat-offenders and crimes harming children. It does go without saying that Congress has discretion to impose harsher sentences to meet legitimate penological goals … Caselaw and Farrar’s case show why increased penalties for recidivists and crimes against children are valid. As articulated in Free Speech Coalition: ‘The Miller standard … does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.’”
Since 2008, the federal courts have recognized that drawings, even cartoons, of children engaged in explicit sexual conduct are obscene.
Hand drawings and comic book illustrations do not depict actual, real children. They are vile and seriously disturbing, but they depict a rendition, regardless of how offensive, of thought, not action. Our society, and in particular our legal system, should not be in the business of punishing thought. It smacks of the Orwell’s “thought police” in his time-honored book “1984.” The “obscene” provisions of the Protect Act of 2003, codified in § 1466A, penalize thought. Today it is the punishment of hand-drawn offensive sketches; tomorrow it could be religious thought or anti-government thought.