If “short” sentences for those that view child pornography is going to be a disqualifying element, a lot of judges should give up on their hopes of someday serving on the US Supreme Court. And by “a lot” I mean pretty much every judge that has ever sat on the bench.
Republicans on the Senate Judiciary Committee thought they were making hay in their attempts to thwart Judge Ketanji Brown-Jackson’s nomination to the high court last week by scrutinizing sentences handed down to men that were found guilty of trading images of child porn on-line. Remember, we are talking about people that were viewing and reposting illegal images–not those actually producing said illegal images. Judge Brown-Jackson’s sentences were below the recommended guidelines about two-thirds of the time–which is in line with the average for federal judges during the same period–including those appointed by Republican presidents to their spots on the bench.
And don’t think “short” sentences are just the norm at the federal court level. Here in Wisconsin, Possession of Child Pornography is a Class D felony with a maximum sentence of 25-years in prison. In my nearly 25-years of covering court cases here in Wisconsin I cannot recall a single instance where a defendant has been sentenced to anything close to 25-years. And that includes the cases where suspects are charged with dozens of felonies. If someone was to have say 25 illegal images on a computer or a phone, they could be (and sometimes are) charged with 25 separate crimes–and that would equal a potential maximum sentence of 625-years behind bars. But again, for those only accused of viewing and trading such images, I’ve never seen anyone get a punishment even approaching 10% of that.
When state legislatures and Congress drafted the statutes setting the penalties for possession of child porn, they could not have imagined that someday it would be an incredibly easy crime to commit. Back then, procuring pictures and videos required some degree of planning and action. You would physically have to go somewhere with a “secret back room off the back room” or secretly produce your own. And children depicted in the images were clearly the victims of sexual assault as well. In talking with officers now involved in task forces like the Internet Crimes Against Children, the web can bring illegal content to you in just a few clicks on your computer at home, and your cellphone, and even to your office desktop.
And child porn is no longer being produced just by molesters or peeping toms. Children themselves are producing millions of, what are by legal definition, illegal images every year. If you are over the age of 40, imagine what it would have taken to take a naked picture of yourself as a teen and share it with another person. You would have had to get the camera out of the closet, then you’d have to take the film down to the photoshop or the drug store to be developed (without anyone there reporting it to the police), and then you would have to mail the pictures to someone else. Now, kids can have those same pics sent from their cellphones to anyone in the world in 15-seconds without ever leaving their bedroom. “Send nudes” has become part of normal courtship now.
That near-acceptance in youth culture was cited in one of the cases brought up by senators last week. Those that put together the sentencing recommendations in a case handled by Judge Brown-Jackson point out that one teenage defendant “wasn’t that much older than the subjects in the pictures” and “saw them as peers”. I have been in courtrooms where defense attorneys have made those very same arguments–a “kids will be kids” type of explanation for the actions. And I’ve seen judges almost apologetic that they were “required” to send people to prison for at least 18-months for the crime.
I know that as soon as Judge Brown-Jackson is confirmed to the Supreme Court, any discussion of this topic will go away. The dozens of possession of child pornography cases handled in our local courts will continue to get just passing mentions in our newscasts. And no one will be showing up at sentencing hearings demanding that perpetrators get put away for all 100+ years that the law allows.
