UNITED VOICES AGAINST CHILD PORNOGRAPHY LAWS
PERSONAL STORIES:
He was 18 years old. He graduated high school, completed a year of community college and recently enlisted in the Navy.
He knew of a photo that was out there on the internet - a girl of 15, in a lascivious position. He found it and downloaded it onto his laptop. He passed it on to an underage teen. One image downloaded and passed on... possession and distribution of child pornography.
He was arrested at age 19. Under the guidelines of the law 2252A, he could receive 60 - 71 months in a federal prison. He was sentenced to 71 months. 71 months... for a non-violent, Non sexual contact "crime". It's hard. I do not understand the severity of the laws. I do not understand how they "help" someone put their life back in order when they have completed their punishment - only to be released to a lifetime sentence on the sex offender registry. Why is it only the "receiver" is punished? Why are the young teens or the photographers of these pictures not punished? If we want this to stop, we must look at all sides fairly and justly.
My son has spent 2 birthdays in prison. He left as a young teen and will come home a man. We write, visit, talk on the phone, pray and hope. Hope is all that we have. Hope for the laws to be reformed soon.
I wake up everyday and I cannot believe the hell we are living. I struggle to comprehend that my son was given an 8 year sentence in a Federal Prison for downloading child pornography from a shared site. He did not attempt to contact anyone or to send these images, he did not pay for these images and he had no previous offenses. My son's sentence was more severe than a recent local case where a young mother tossed her newborn child in a garbage can on a cold winter day and left it to die. Our lives are just a fog we go through to get past one more day. I find myself crying in my 80 year old parent's arms like I was a child. I fear they will not be here when he comes home. I have seen psychiatrist, psychologist and counselors and have tried numerous antidepressants to help me cope. I count the Christmases, the birthday and the Sunday dinners without him. I have gone from alcohol to God to help me understand what has happened and many days I find myself locked in a room just aching for my son to be home with no clear understanding of why he was so severely punished for a thought crime.
Our stories are like thousands of others across the nation, whose lives have been destroyed with the skyrocketing of criminal charges for possession of child pornography. These newly constituted laws are based on nationally sensationalized cases of severe child victimization, skewed data, public hysteria and political gain.
CONGRESSIONALLY MANDATED CHANGES NOT BASED ON SOUND RESEARCH:
As the former United States Attorney for the Eastern District of New York observed:
"Equally alarming was the process by which these reforms were introduced and considered in Congress. The Feeney Amendment was introduced without input from the federal judiciary, the organized bar, academics, criminal justice experts, probation officers or prison officials. Even the Sentencing Commission itself - the very body charged by *315 Congress with the responsibility of creating and amending the Guidelines- was not consulted.
Indeed, the statutory process for considering guidelines amendments - one that calls for the Sentencing Commission to consult with numerous interested parties in the criminal justice process - was ignored"(1)
Our utmost priority must be to protect our children and remove from society those who harm them. At the same time, we must treat fairly all who are charged within our justice system. These laws are applied so broadly to violators that someone committing a non-violent crime, non contact offense can receive a longer prison term than someone committing murder or other violent crimes
FLAWED GUIDELINES
No category of offense has seen a more dramatic increase in sentencing than child pornography. In federal court, the average sentence for child pornography offense increased from 36 months in 1994 to 109.6 months in 2007(2). In the past two years alone, a small but growing number of federal judges have felt strongly enough about the guidelines to register their objections in the form of a written opinion. These guidelines make no clear distinction between the offender who swaps a few images online with another offender and the mass producers and distributors who make and market such material to millions of potential customer's world wide.
"The pertinent question to ask is what caused such an incredible increase over the last decade? Does the typical offender today require 70.71 month or almost six full years, more confinement than the same offender a decade ago?" The answer to these questions is a resounding "No". The changes to the child pornography guidelines are not the product of an empirically demonstrated need for consistently tougher sentencing. Instead, these changes are largely the consequence of numerous morality earmarks' slipped into larger bills over the last fifteen years, often without notice, debate, or empirical study of any kind. Congressionally mandated changes were even enacted to prevent the Commission from implementing carefully considered modifications which would have lowered applicable offense levels.
We do not condone the exploitation of children in any form. These laws were enacted at a time when possession was thought to drive demand. At that time one would need to pay for photographs, films or magazines. The Internet has obviously changed that. Pornography is the number one use of the internet and is viewed regularly by over 40 million persons a day(3). Most child pornography is not viewed on the Internet with any economic exchange. Our legislators are making laws to address the heinous exceptions and then applying these harsh laws to a broad offender group, most of whom have nothing in common with monster predators.
Sexting and possession of Internet child pornography is a 21st century crime for which there is currently no effective legal answer. The current U.S. legal system response is oversimplified and ineffective. It casts a wide net, convicting those who access illegal material while turning a blind eye to those who produce and distribute it to the public. "These penalties have been increased arbitrarily and are irrationally based on political demands, and "enhancement: specifics so ill-defined that they apply in almost every case. These guidelines treat even first time offenders with no history of abusing or exploiting children as seriously as murders, rapists or child molester" Troy Stabenow, former military prosecutor. (June 10, 2008} According to Stabenow's analysis nearly 80 percent of all child pornography defendants in 2006 had no prior felonies of any kind, let alone a history of sexually abusing or exploiting a child(6).
[Note: The United States Sentencing Guideline sets a mandatory sentence for each crime as a category of crime. then the mandatory sentence is 'enhanced' by a subset of specific 'conduct'. That is, possession of a proscribed article carries a sentence of some defined number of months (read years), then the specifics of the proscribed item carrying additional penalty, in most cases leading to a sentence more than double the original mandatory sentence. In the instant case, an example would be that a sexually explicit image was possessed. The image was of a person under 16, add more years, the image was copied on the computer or sent to another computer, distribution, add more years. Had the image included anything that could be interpreted as restraint, add a lot more years.: Editor.]
SKEWED DATA:
The group studied by the Commission included "a significant portion of child pornography offenders who have a criminal history that involves the sexual abuse or exploitation of children." That group bears little resemblance to the average offender sentenced today.
Moreover, the guidelines are predicated on the untested assumption that anyone who would access and view child pornography is a potential child molester-an assumption for which critics say, the evidence is both scant and inconclusive. "Under this approach, it is enough that there is a potential for harm, that the individual's psychological makeup-or political inclinations-pose a grave risk. This attitude rips a large hole in the fabric of our American concept of justice. We do not allow incarceration for the propensity to commit a crime. In our system, the punishment should never precede the crime."
"Consuming child pornography alone is not a risk factor for committing hand-on sex offenses, at least not for those subjects who had never committed a hands-on sex offense. The majority of the investigated consumers had no previous convictions for hands-on sex offenses. For those offenders, the prognosis for hands-on sex offenses, (likelihood of no such criminal actions occurring) as well as for recidivism (lack of return to previous behavior) with child pornography is favorable(7).
DISCREPANCIES IN PUNISHMENT:
E-Gold, a digital currency business, whose case was investigated by the U.S. Secret Service, IRS Criminal Investigation and the FBI, was prosecuted by Assistant Attorney Jonathan Haray of the U.S. Attorney's office for the District of Columbia, and others, with assistance from the Criminal Division's Child Exploitation and Obscenity Section. Douglas Jackson, proprietor and founder, faced a maximum fine of $3.7 million and a maximum of 20 years in prison plus a personal fine of $500,000. His actual sentence after his plea: 300 hours of community service and $200(8).
"Fundamentally, according to the law, you'll get less time for abusing a child than you will for looking at pornographic images of children."(9)
CALL TO ACTION:
The United States Sentencing Commission has identified a review of the child pornography guidelines and we are asking for RSOL members, families and friends to support reform of this legislation. The US House Judiciary Subcommittee on Crime, Terrorism and Homeland Security is our primary target:
http://judiciary.house.gov/about/subcrime.html.
Write letters with your personal stories, make calls and demand change, be persistent and make regular contact. Ask family and friends to contact each house member of congress opposing these laws.
http://www.conservativeusa.org/mega-cong.htm
It is imperative that our elected officials receive thousands of letters opposing these guidelines beginning now and continuing through May, 2010. Letter writing campaigns, phone calls and faxes will have the greatest impact. Keep a steady pressure on them for change.
If you are interested in working with a state organizer to coordinate a letter writing campaign please contact nyrsol@aol.com .
CONSEQUENCES:
The long reaching consequences of these offenses leaves little support programs available for one who bears the label of sex offender. Support for those on the sex offender registry is almost non existent. Most face severe supervision restrictions, including polygraphs, even though inadmissible by the Supreme Court, road blocks to employment, circulars throughout neighborhoods to publicize where they live and restrictions to live in their own homes with their families.
The safety of our children is not being served and resources are misspent. In closing, a quote from Judge Gilbert S. Merritt of the 6th U.S. Circuit Court of Appeals at Cincinnati: "The federal legal system has "lost its bearings' on the subject of computer-base child pornography and likened the treatment of offenders to the "witchcraft trials and burnings: of several centuries ago."(10)
Our responsibility to our loved ones who have been victims of this legal injustice is to make the public aware this is not a black and white issue and to voice our opposition to our government officials.
"NEVER DOUBT THAT A SMALL GROUP OF THOUGHTFUL CITIZENS CAN CHANGE THE WORLD: INDEED, IT'S THE ONLY THING THAT EVER HAS." MARGARET MEAD
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1 Alan, Vinegrad, The New Federal Sentencing Law, 15 Federal Sentencing Reporter 310, 314-315 ( June 2003)
2 Ian Friedman and Kristina Supler
3 Paul, Pamela: Pornified
4 Stabenow, Troy, "Deconstructing the Myth of Careful Study: A primer on the flawed progression of the child pornography guidelines, June 10, 2008
5 Hansen, Mark. "A reluctant Rebellion." ABA Journal June, 2009 www.abajournal.com/magazine
6 Janus, Eric S., "Failure to Protect"
7 "The Consumption of Internet Child Pornography and violent and sex offending" BMC Psychiatry, July 14, 2009 www.biomedcentral.com/1471
8 Http://www.usdoj.gov/opa/pr/2008/july/09-crm-635.html
9 Penalties are Inconsistent: Buffalo News: 5/18/09 Editorial
10 Hansen, Mark. "A reluctant Rebellion." ABA Journal June, 2009
