Conjunction Function

Jacob Sullum | December 7, 2004

Arrested at 18 for e-mailing child pornography to people who requested it, Jorge Pabon-Cruz received a 10-year sentence last year. U.S. District Judge Gerard Lynch called it "the worst case of my judicial career," saying he had no choice but to impose a sentence he considered inappropriately harsh.

But the U.S. Court of Appeals for the 2nd Circuit says Lynch did have a choice, because the law Pabon-Cruz violated did not actually impose a mandatory minimum sentence. The law called for a fine, a 10-year sentence, "and both"--phrasing the appeals court says rendered Congress' intent opaque, especially since an earlier version of the bill said "or both," language that would have allowed judges to choose between a fine and a prison term. As a result of the misplaced conjunction, Pabon-Cruz will be resentenced to a shorter prison term.

Meanwhile, Congress has fixed the law under which he was convicted, although not in the way Judge Lynch would have liked. Now first-time offenders convicted of advertising to receive or distribute child pornography will receive a mandatory minimum sentence of 15 years.

Comments

|12.7.04 @ 11:52AM|#

Question: Was Cruz running the distribution scheme or was he the proverbial "kid on the street selling crack," i.e., arresting him makes no dent in the people supervising the sales channel?

I'm sure there are 13 year olds with enough web savvy to run a child porn website. But, if Cruz was in fact "small fry," then the sentence is excessively harsh.

|12.7.04 @ 12:43PM|#

I thought he was 18, not 13?

I get pretty pissed about the mandatory minimums for drug crimes, but are we supposed to be outraged on behalf of a guy distributing child porn?

|12.7.04 @ 12:55PM|#

Perhaps kid porn is inverse to firearms crime: The harm is at manufacture rather than use. As we proseucte gun users, not makers, we should prosecute kid porn makers, not users.

In either case, the distributor is not hurting anyone, but part of a circle of exchange in which some might feel harm.

|12.7.04 @ 12:57PM|#

I think the problem here is that the system of law has degenerated to the point where a 10 year prison sentence is riding on a type-o.

|12.7.04 @ 1:18PM|#

It's spelled "typo," not "type-o."

Also, it's spelled "Eric," not "Eryk."

|12.7.04 @ 1:35PM|#

Typo it is then but I think I know how to spell my own name better than you and "Eryk" is correct. Please try to remember that not everyone in the world is Norwegian.
Eric - Norwegian
Erik - German
Erich - Irish
Eryk - American

Matt|12.7.04 @ 1:43PM|#

Jacob: Could I trouble you for the source of the information that the law now imposes a 15 year mandatory minimum sentence? I'm sure I could look it up, but you probably have it right there, and also I'm lazy. I noticed this article from a link at Prof. Althouse's blog and thought it presented an interesting circumstance for textualists -- those who believe we ought to be governed by what the law says, not what might have been intended, why it might have been voted for, or especially what we wish it would say. "Scrivener's error," which the Second Circuit chalks it up to, seems like a nice, neat out on that. But if Congress has now changed the law so there's a mandataory 15 year minimum sentence, maybe it wasn't a "scrivener's error" at all? Just wondering. If you have the source and can post it, I'd be grateful.

|12.7.04 @ 1:45PM|#

Also, "Boston" is the name of a city. It is not a surname.

|12.7.04 @ 1:48PM|#

"I get pretty pissed about the mandatory minimums for drug crimes, but are we supposed to be outraged on behalf of a guy distributing child porn?"

Really. He didn't make it, granted, but there's no excuse for passing this shit out.

|12.7.04 @ 2:00PM|#

Hmmm...where did all the libertarians go?...

fyodor|12.7.04 @ 2:00PM|#

Really. He didn't make it, granted, but there's no excuse for passing this shit out.

Who's giving excuses? Six months in the slammer seems reasonable to me. 10 years might make sense for the people who actually made it, depending on circumstances, like was force used or was this just candid photography, how graphic/degrading was it, etc.

|12.7.04 @ 2:12PM|#

A Google search turns up quite a few entries on this guy. If he was distributing the types of images that he is claimed to have been distributing (child rape, torture, etc.), fuck him. I don't really care if he was the one producing it or not, some things simply cannot be tolerated no matter how free the society.

|12.7.04 @ 2:15PM|#

"Hmmm...where did all the libertarians go?..."

Yup, we're statists cuz we condemn child porn.

|12.7.04 @ 4:56PM|#

We could just avoid the libertarian/statist problem by avoiding the courts and dispatching a couple of bountyhunters after this guy and his employers. I'll pass the hat.

|12.7.04 @ 5:27PM|#

Child porn creators are obviously using/abusing children. Child porn distributors are not DIRECTLY using/abusing children, but they are distributing content for which the subject (the children) did NOT give legal consent. Therefore, I think child porn distributors should be punished. However, I don't know if the punishment should be criminal or civil.

|12.7.04 @ 6:12PM|#

I find that "child porn" is another bugaboo that is often used for justice miscarriages. I am not condoning abuse of children. But just because a webpage or newspaper reports that a prosecutor says that the images were of rape, etc. doesn't mean that they really were.

I am reminded of the photographer who was charged with child porn violations for taking pictures of a 14-year old model in a bikini while her mother watched!

Remember, if it is "for the children", watch out! Civil liberties violations may lie ahead.

|12.7.04 @ 8:27PM|#

"Hmmm...where did all the libertarians go?..."

I dunno, if I have to defend your right to engage in child porn I think you might have to count me out.

Has Reason ever done a serious article on "moderate" vs "extreme" (or whatever you prefer to call it) Libertarianism? Seems like it'd be an interesting read.

|12.7.04 @ 8:50PM|#

but are we supposed to be outraged on behalf of a guy distributing child porn?

I'd like some more information on what kind of child porn it was. Were the subjects five years old? Were they one day shy of their 18th birthdays? Ten years doesn't seem like enough for the former, but even ten minutes seems like too much for the latter. If it's wrong to lust after 17-year-olds when you yourself are 18 I imagine there are more than a few people in this forum who ought to be in jail.

|12.7.04 @ 9:38PM|#

Child porn is a topic that is particularly in need of nuance (there's that word again). As Dan mentioned above, there is a world of difference between a 17-year-old and a 5-year-old. Arbitrary distinctions like "18 years plus one day" versus "18 years minus one day" make little sense in this (or any) law.

Then you have the case of the 18-year-old boyfriend taking pictures of his 17 year-old girlfriend. Is this child porn? Why or why not?

There is a whole subcategory of porn devoted to the "barely legal", performers who are supposedly still teens (18, 19), but could be mistaken for younger. Should fantasy child-porn, where the performers pretend to be underage, be classed as child-porn? What about Traci Lords films, where she was supposedly under 18, but looked and acted much older? Is that child-porn? This is a subtle difference: in the fantasy child-porn, the customer pretends he's got real child-porn; with Traci Lords, the customer assumes he has regular old adult porn.

What are the distinguishing characteristics of child-porn? Is the mere use of legal minors enough? Must the distinction lie in the heart of the customer? Either? Both? Escallating penalties as the age of the performer decreases? Escalating penalties as the age of the customer increases?


Minimum sentencing is a miscarriage of justice.

|12.7.04 @ 11:10PM|#

RMM,

You're right that there's obviously no comparison between porn with 5 yr olds and porn with 17 yr olds, but i'm assuming that they were really kiddies in this case, because otherwise I think Jacob would have mentioned it.

And yes, mandatory minimums are an affront to justice, as are far too many things in our government today.

|12.8.04 @ 12:24AM|#

andy,
Child porn is the perfect wedge issue . It is better than the war on drugs to keep law-makers in line. Since nobody can legally view it to make up their own minds, the public can be told anything, no checks and balances. The usual hyperbole employed when the topic comes up, should raise anyone's suspicion. It has been used many times to undermine constitutional protections, ex-post-facto laws come to mind.
The often hysterically implausible child sex abuse prosecutions of the 1980s, many of which are now falling apart, should give us all pause. But combine the words 'child' and 'sex' and people just lose it. It seems it makes them so profoundly uncomfortable they'd rather not discuss it at all, lest they are suspected of condoning it.

"Beware of those in whom the impulse to punish is powerful."
(Can't remember the source)

|12.8.04 @ 7:52AM|#

One thing I'm wondering.. how often does someone get totally screwed for having "barely legal" material that ends up being "barely illegal"? Or are these cases clearly of grade school/toddlers/other totally sick shit? Anyone? Anyone?

Captain Awesome: I'm totally with you. Pass that hat.

|12.8.04 @ 9:13AM|#

Good point, Martin.

|12.8.04 @ 9:48AM|#

Martin

It's Nietzsche. From "Thus Spake Zarathustra".

|12.8.04 @ 12:08PM|#

Mr. Nice Guy:
To my knowledge there are no independently verified statistics on the actual content of seized child porn. The brutal rape of a child should be in a different category than a 16 year old showing off, but since any sexual depiction of persons under the age of 18 can be treated as an offence, no distinctions are made.
Stories of dumb middle- or high-schoolers taking, however explicit, pictures of themselves and being charged with distributing child porn, don't inspire much confidence.
The whole issue is a power-enhancement bonanza for law enforcement and various "child protection" organisations. It often involves judging a man's "feelings" or "inclinations". A slippery slope. We're getting into mind control here.

|12.8.04 @ 3:21PM|#

...I think child porn distributors should be punished. However, I don't know if the punishment should be criminal or civil.
The "statists" see it criminally. I see it as a civil issue. If I list a lewd greek antiquity on eBay, am I still contributing to the violation of a long-dead child's rights?

Hmmm...where did all the libertarians go?
I'm piping up for the anarchists...where's my brother Ruthless on this issue?

Evan McElravy|12.8.04 @ 8:18PM|#

If I list a lewd greek antiquity on eBay, am I still contributing to the violation of a long-dead child's rights?

No, of course not. The camera being a recent invention, no Greek ephebos was involved in the creation of what are essentially works of the imagination. A photography of someone in the act of being sexually exploited is a different thing. The original idea behind criminalizing child pornography, at root, is not obscenity but child abuse -- a person is being harmed to produce a photo or a video. In Canada recently, an appeals court tossed out the conviction of a B.C. man who had written a number of extremely lewd stories about young boys, as their creation was not dependent on the abuse of anyone. In the U.S., I suspect the laws are titled more toward the obscenity angle now but that is clearly harder to defend than child abuse. Greek art depicting what we would now call "underage" teens is not especially graphic in any event: a representative archive can be found here: http://www.utexas.edu/courses/cc348hubbard/

|12.8.04 @ 11:10PM|#

Evan: Nice post! How would distributing images of a child abuse be significantly different from peddling film of gruesome crimes, accidents, or war? Either for-profit or as news?

|12.9.04 @ 3:48AM|#

The "statists" see it criminally. I see it as a civil issue.

Child pornography (the real stuff, that is) requires the rape of children. Paying for child pornography is therefore morally and factually equivalent to paying someone else to rape children on your behalf. There is nothing "statist" about making it illegal to pay other people to commit heinous criminal acts on your behalf.

Evan McElravy|12.10.04 @ 10:15AM|#

Dynamist: beats me. Two points come to mind. First, society has deemed children more in need of protection than non-children. Second, in most obscenity law there is the idea of "prurient interest." Would this mean that, say, marketing tapes of the Beslan school massacre to Internet weirdos should be criminal, while airing them on the 6:00 news should be regarded as a civic good? Doesn't seem like it but I'm not much of a political philosopher. It does seem like there should be a difference between materials depicting horror in which the distributor was an actor in the commission of said horror, and materials in which the distributor is piggy-backing on third party villains. Which I guess would draw a line between a child snuff film shot by perverts in the San Fernando Valley and one shot by journalists in the Caucasus.