The Beauty of Mandatory Minimums: You Don't Have to Ask for Them

Rachel Alexander, a prosecutor in the Maricopa County Attorney's Office, defends her office's treatment of Matthew Bandy, the Arizona teenager who initially faced 90 years in prison for nine sexual images of minors on his computer but ultimately got probation for showing his friends run-of-the-mill porn. Alexander seems more on the ball than her boss, Andrew Thomas, who was interviewed for the 20/20 exposé about the case, but it's still hard to escape the conclusion that Bandy's prosecution was overzealous, to put it kindly.

Alexander says her office had strong evidence that Bandy deliberately downloaded the child porn. She makes much of the fact that some of the illegal images had been copied to a CD-ROM. But Bandy's computer experts say the "zombie" software they blame for downloading and uploading the pictures also could have copied them onto the disk, which sat in the computer's CD-ROM drive much of the time. I don't know much about the viruses used by child porn distributors, but it seems to me there was more than reasonable doubt that the the pictures were downloaded on purpose and that Bandy was the one who did so, even if you discount the two polygraph tests he passed (which a jury presumably would not have heard about). In his 20/20 interview, Thomas seemed to concede the possibility that Bandy's contact with child porn was accidental:

I'm content that the appropriate sanction was imposed to hold him accountable, teach him a lesson, teach him that this isn't fun and games. If you're goin' to start playing around on pornographic sites, and you come across child pornography then, you know, you better accept the consequences of that.

Alexander also argues that the much-ridiculed plea bargain her office finally settled on, which involved 18 months of probation for a crime of a sort that apparently has never been prosecuted (showing Playboy to your buddies), was an honest attempt to do justice. "Our office never intended to ask for a sentence of 90 years in prison," she writes. In the 20/20 interview, Thomas likewise said a long prison term was not an appropriate sentence for a first-time offender charged merely with possession, as opposed to distribution, of child pornography.

But 10 years is Arizona's mandatory minimum sentence for possession of pornography involving anyone under 15, which is considered "sexual exploitation of a minor." Each image counts as a separate offense, and the sentences must be imposed consecutively. (See this Arizona Supreme Court ruling upholding a 200-year sentence for possession of 20 images.) The prosecutors did not have to "ask" for a sentence of 90 years; that's the minimum Bandy would have received had he been convicted of the original charges. The "presumptive" sentence would have been 153 years, and the maximum would have been 216.

Let's assume what Alexander means is that her office always expected that Bandy would plead guilty to lesser charges carrying a more appropriate penalty. But according to Bandy's family, the prosecution did not make any plea offers that did not involve prison time until after the defense presented evidence that malicious software may have accounted for the child porn on the boy's computer. Even then, the prosecution insisted on branding Bandy a sex offender, imposing onerous restrictions that would have made an ordinary life impossible had a judge not rejected the label. Even assuming that all of the prosecution's allegations were true, that behavior does not jibe with Thomas's insistence that he wanted to teach Bandy a lesson and give him a second chance.

Here are the 20/20 story, the transcript of the interview with Thomas, my original post on the case, the Wendy McElroy column to which Alexander was responding, the website maintained by Bandy's defenders, and a report from the Maricopa County Attorney's Office responding to their criticism. 

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  • ||

    How do they know if the children depicted are under 15? Did they contact the maker of the porn? If so, why isn't that person going to jail?

  • ||

    Does Matthew Bandy have to register as a sex offender?

  • STEPHEN THE GOLDBERGER||

    i always wondered too how it works since he was underage. When I was 15 and searching for porn on the internet i wanted to see girls near my age or at least near my age. Would I have gotten in trouble for child pornography?

  • stephen the goldberger||

    assuming i found underage porn

  • ||

    Lamar,
    Same way you check to see if somebody is old enough to waive the ID checking process at a bar, you guess.

    Now, I suppose if the images were of a six or seven year old that is rather obvious, but I have seen some early bloomin' 15 year olds that can waltz into a bar like it's nobody's business.

  • ||

    Mandatory minimums for images on a hard drive are a scary thing. Especially when no consideration is given to whether they were downloaded intentionally. What ever happened to the notion of intent.

    For example, the manager in one of offices was fired for sexual harassment. When I was sent to set up the next person, I found that hiscomputer was overrun with porn pop-un and digging through his history, found that he apparent spent 8 hours a day looking at porn.

    I was able to clean up the PC (probably should've bleached the desk, chair, and mouse, too) but who know what files were tucked away that I couldn't detect. And of the stuff that I "deleted", I didn't look to see what it contained and most of it was probably still recoverable. Thankfully, the PC is now in a landfill.

  • ||

    Thankfully, the PC is now in a landfill.

    uhm which landfill?

  • ||

    Lamar,

    It said somewhere in one of the articles that some of the children were easily under the age of 10.


    David,

    The intent seems to have been there. Last time I checked, a computer virus can't write "Lolita" in marker on a CD and remove it from the CD drive.

  • ||

    Jacob's point about madatory minimums is a good one. Let's say that this kid was completely innocent (except the playboy charge) and his lawyer was 95% sure he could beat the rap in court. Now, lets say this guy got the most law and order jury in the land and looses the case. There is no discretion allowed by either the prosecution or the judge for leinency in sentencing. This kid would have been sentenced to 90 years, minimum. No second chance to fly right, no "probation without computer access", nothin' doin'. Is that really a good way to handle missteps of youth? Don't accidentally look at the wrong porn or we will jail you for the rest of your natural life.

    I mean, if the guy had obviously been engaged in child porn, not 9 images but 900 images and perhaps passwords to child porn sites I could see a long sentence.

    In this case 90yrs=life. Life for not installing adaware, or a popup blocker? Life for looking at breasts that were a year too young? Life, even if he is a perv, for the first offence? Hell, subject him to monitoring to make sure he isn't actively searching out child porn and go from there. But to sentence a kid to life for a potential computer glitch is outrageous.

    I guess to stay out of prison we must not only stay confined to our houses, we must disconnect our modems as well.

  • ||

    I remember the McMartin school case, an infamous case in California's central valley where day care workers were accused of raping, murdering, and eating (cannibalism0 of children. None of the children from the day care were missing (who was murdered or eaten?), but some female workers were convicted and imprisoned. I had been a law and order type, but I realized that our cirminal justice system was perfectly symmatrical - convicts and innocent and lets the guilty go

  • Guy Montag||

    I was under the impression that most courts could toss a conviction by a jury, but the point is taken. The judge might not have done that.

    Another point, the nonsense of having images on one's computer can be taken to pathetic levels, just as 'drug posession' charges with people having residue on money, or in used cars has been.

    I am more on the side of finding the child pornographers and distributors of that as they are the ones who obviously harmed children. If the viewer harmed children there should be some evidence beyond hidden files on their computer, like a child they attempted to harm or worse.

  • anon||

    This is an interesting dilemma. Presumably seeing nude 15 year old girls in person, say in the back seat of his car, would be perfectly legal.

  • ||

    Well, let me just be the first to say--

    IT IS FUCKING INSANE TO LOCK UP PEOPLE FOR THOUGHT CRIMES.

    ESPECIALLY FOR NINETY YEARS.

    Hey, you catch the people making true child porn (not Jock Sturges or some other stuff--I mean sexually abusing kids on camera), then 290 years is OK with me. But this mania for locking people up for evil thoughts--which is EXACTLY what is going on here--is more fucking demented than the alleged offense.

  • ||

    Smacky,
    Marker, what marker?

    From a FoxNews article regarding the case:

    A burned CD was found in his home, which contained the same pornographic images of children found on his computer. The images were saved in a file named "Lolita," which is a term used by child pornographer traffickers to refer to underage images.

    Bandy's defense attorney asserted that a "virus" or "trojan" must have downloaded the child pornography to Bandy's computer without his knowledge. Even if this were true, it is the County Attorney's contention that a virus could not have burned those images to a CD, titled them "Lolita," then physically removed the CD from the computer and place it elsewhere within the family home. The fact that child pornography was found on the CD at his home cannot be ignored.



    A virus could not have done this, but a trojan, a computer program that allows hackers (real people) to take over your machine and use is as their own, could. I have yet to find any info stating where that disc was found (in the CDRom perhaps?), nor if there was other data on the disc. I have frequently used CDRoms as backup discs, not closing off the burning sessions until the disc is full. I use them for archival purposes, only pulling them out again if I need something which is very rare.

    If a malicious user had obtained access to the computer via a trojan and had attempted to write to a new file on the D: drive, no knowing it was a removable CDRom, it would never have been noticed by the owner of the computer until he browsed the CDRom in question.

    I am not saying that he didn't do it, but there are far to many "ifs" to sentence him to life.

  • ||

    ACL,

    What about people who pay to view child porn? Isn't that arguably perpetuating a crime? What about those who just visit those kinds of websites? Isn't there some kind of advertising profit to be made just off of those people who visit the site and populate it? I don't think it is as simple as "thought crime".

  • ||

    Marker, what marker?

    Kwix,

    I don't know, for some reason I thought the CD had been labeled or written on...I must've just misremembered the article.

  • Robert||

    I had the same thought as The Goldberger today. If the law makes an exception to statutory rape if the participants are of the same age, then why not if the porn you possess is of people the same age as you? Or if you're showing porn to people the same age as you?

    Apparently it would've been legal for him to have sexual intercourse with the boy he showed Playboy to, but not to show the boy pictures of other people in sexual poses. Would it have been legal for him to have sexual intercourse with another boy while a 3rd boy watched? Guess not. Apparently that would constitute child pornography for all 3 of them!

  • Guy Montag||

    Obligatory bad WC Fieldsesque joke: Cheap computers! Now I can own a pornograph!

  • Graphite||

    While I'm not a fan of the attempt to railroad this poor kid into an extended prison term or registration as a sex offender, I'm pretty skeptical that it was malware that created a folder called "Lolita" on that CD. Surreptitiously uploading free images to a potential paying customer's computer just doesn't sound like the pornographer M.O. to me.

  • ||

    Cuff me, officer!

  • ||

    smacky--

    First, people are liable to go to jail for 90 years or whatever even if they get stuff for free off of P2P, Usenet, whatever. So that concern is NOT driving the bus here.

    But let's take your example, because it is important. It really raises the issue of when secondary or terciary (or more remote) parties should liable for the actiosn of another. If I pay to have a kiddy porn film made, certainly I am part of a conspiracy--to rape a child. That is the crime, camera or no camera (although the sentence should be enhanced for recording it, for sure).

    How about we substitute "murder a woman" for "rape a child"--instead of kiddy porn, we are talking about a true snuff film. Same result for paying to have one made--an accessory to murder, clearly. But what if I go to some P2P network or newsgroup and happen upon the already made film there? Should I go to prison for downloading it? Watching it? Enjoying it?

    No, no, no. I might be a very unsavory person (I would say so for sure in the latter case), but it is not the job of government to punish "bad people"--it is punish bad ACTS, i.e. those that harm others directly. And downloading a snuff film from eMule is not causing anyone to be killed, sorry.

    If we want to criminalize everyone involved in the COMMERCIAL chain of production and distribution of kiddy porn, we can do that as a legitimate act of state power I think. This includes down to the paying consumer, whose $$$ is going to be upstreamed to the true evildoers, one way or another. But 90 years for simple possession is bullshit, and the Supreme Court went off the rails in Ferber when they blessed this.

  • ||


    The intent seems to have been there. Last time I checked, a computer virus can't write "Lolita" in marker on a CD and remove it from the CD drive.


    No, but a blind backup could. Do you check every file on your hard drive before backing up to CD?

  • ||

    I'm pretty skeptical that it was malware that created a folder called "Lolita" on that CD. Surreptitiously uploading free images to a potential paying customer's computer just doesn't sound like the pornographer M.O. to me.


    Graphite,
    I invite you to read the linked website maintained by Bandy's defenders, in particular this page. From linked page:

    As our experts discuss, it's already common practice for computer hackers to use viruses and other techniques to take over control over huge groups, or "farms," of computers, and sell access to the "farm" for use in spamming and "phishing" and denial-of-service attacks. If remote computer access can be sold for those purposes, it can be sold for any purpose - again, as our experts testify.

    Computers controlled this way are called "Zombies" and our "Are You in Danger, Too?" article is a must-read, because your family could be next. And once you can control a "Zombie," you can do anything with it that the user could do, to include burning images on a CD-ROM if there's one sitting in the drive. And if you were going to commit further crimes on the computer, like uploading images, wouldn't you do so in way that made it look like one of the innocent resident users was doing it, picking a similar username, accessing sites right after they do?



    As for "potential paying customer" it was a Yahoo group. Free site, free images. Yahoo IT found the group, deleted it and reported the usernames of everyone who accessed it, along with times and IP addresses to the authorities. If an outside person was accessing this computer(via a trojan backdoor) to hide his tracks, he could also use said computer to store the images on.

  • grylliade||

    Surreptitiously uploading free images to a potential paying customer's computer just doesn't sound like the pornographer M.O. to me.



    Why do you necessarily think that it's the owner of the images that would do it? Twice I've been involved in cases where people had porn on their computer that they didn't ask for. Once I was fired from a place for downloading porn on the client's computer. Never mind that I had my own computer there, hooked up to the internet, and that I could get porn on my laptop without any repercussions if I so desired. Malware downloaded porn to the client's computer, and even printed it off on the printer, without the knowledge or consent of anyone in that office.

    A short while later, my dad found porn on my mom's computer while she was on vacation. I didn't live at my parents' house then; I had my own computer at my own apartment, with my own broadband internet connection. Nonetheless, there was porn on my mom's computer, which my dad thought that I'd downloaded. Again, it was malware that had done so; it's not happened again since I locked my parents' computer down tight.

    In both cases, porn was downloaded to a computer without the owner's permission, knowledge, or desire. The most likely culprit, IMO, is script kiddies. When you were thirteen, didn't you or someone you knew think that it would be hilarious to get someone in trouble by putting porn on their computer? And even if it's not script kiddies, a lot of people wouldn't hesitate to "advertise" in this manner; look at spammers. People don't always act rationally; they just act in a manner that seems rational to them.

  • ||

    I might be a very unsavory person (I would say so for sure in the latter case)


    I might be misunderstanding you, but are you suggesting that you might not be sure if someone who would willingly view child abuse/molestion/porn is a very unsavory person? It would seem so, but maybe you just didn't write that thought well.

    If we want to criminalize everyone involved in the COMMERCIAL chain of production and distribution of kiddy porn, we can do that as a legitimate act of state power I think. This includes down to the paying consumer, whose $$$ is going to be upstreamed to the true evildoers, one way or another.


    What I am trying to say is that people who view/download/visit websites/share are contributing to the demand for the product of illegal activities, even if they are not paying. They are perpetuating it.

    The question is even if money/corruption were not a relevant issue, and say perhaps the black market/profiteers were eradicated, whether or not this would prevent certain people from seeking it out.

    I was not commenting on the verdict or the severity of the punishment in this particular case.

  • ||

    "What about people who pay to view child porn? Isn't that arguably perpetuating a crime? What about those who just visit those kinds of websites? Isn't there some kind of advertising profit to be made just off of those people who visit the site and populate it? I don't think it is as simple as "thought crime"."

    How is that any different than the whole "the money you use to buy drugs goes to support terrorism in Latin America" argument. Hell, the money you spent buying that fake Coach handbag ends up in the pockets of criminal gangs that engage in human sex slavery, murder, extortion and the like.

    The stream of commerce theory of criminal activity is a pretty loose hook to hang your hat on. If someone is molesting children, shoot them. If they are taking pictures of children, shoot them. If they are distributing it and running a web site, go after them. But I have a real problem with throwing someone in prison for decades and declaring them a perminant devient who has to register as a sex offender because they had the wrong kind of images on their computer.

  • ||

    "What I am trying to say is that people who view/download/visit websites/share are contributing to the demand for the product of illegal activities, even if they are not paying. They are perpetuating it."

    Isn't the same true of people who buy counterfeit goods. There is a huge criminal edifice involved in making fake goods. Further doing so is illegal. Granted, making a fake Coach bag is not the same as molesting a child. The point is, however, I wouldn't hold someone who bought a fake Coach bag responsible for contributing to the crimes that the criminal gang from which they bought from committed and I don't see how you can hold someone who visits a website responsible for the crimes committed by those who run it.

  • ||

    But I have a real problem with throwing someone in prison for decades and declaring them a perminant devient who has to register as a sex offender because they had the wrong kind of images on their computer.

    John,

    For the record, I wasn't remarking on the particular punishment in this particular case, nor was I defending life prison sentences for possession of anything.

    How is that any different than the whole "the money you use to buy drugs goes to support terrorism in Latin America" argument.


    It is different because the crimes that occur in connection with terrorism in Latin America aren't a direct result of the drug product (say, cocaine) that I might enjoy using. When there is a demand for a drug, there is not a contingent demand for terrorism.

    On the other hand, people consuming child pornography and desiring to seek out more will most likely result in abuse of more children sooner or later. When there is a demand for child porn, there is a contingent demand for child abuse.

  • Alex||

    You does the crime you does the time. He deserves to be in prison for the rest of his life. It is unfair that he is free. What about the harm he has don to society. I don't care if they got there accidentially, intent is irrelevant, if they are there he desrvese prison and/or death, period, end of discussion.

  • ||

    "When there is a demand for child porn, there is a contingent demand for child abuse."

    But it is still just the demand not the actual child abuse. One person abuses and a child and another person watches or even pays to watch. You are saying that that second person is somehow responsible for the first person's abuse. We don't do that for any other crime. The second person's crime is no action other than the devient thought of likeing to watch the first person commit the crime. Yeah, the second person is a wierdo but he is not abusing the child in the same way the first person is. It comes down to his thoughts being criminal.

  • ||

    How do they know if the children depicted are under 15? Did they contact the maker of the porn? If so, why isn't that person going to jail?

    Because what would be the point, if a prosecutor can readily destroy a kid's life that is at arm's length? This is not about justice but about justifying your paycheck - just ask Nifong.

  • ||

    Here's another question -- with the rise of torrents and such, it's easy enough to download a mislabeled torrent.

    If I'm downloading what I thought was a boot-leg "Girls Gone Wild" (or "Back Door Sluts 9" -- your choice) and open it to find what damned well looks like 15 year old sex filmed off a webcam...

    Did I just break the law? I didn't WANT 15 year olds having sex on my computer. I didn't CHOOSE 15 year olds having sex on my computer. And I probably went "ACH!" and deleted it right away.

    Yet I'm guessing that broke the law.

  • ||

    Smacky, ('ll say it: someone might willingly view "child porn" and not be a "very unsavory person." It seems clear to me that plenty of people find adolescents aged 16-18 particularly sexually attractive. I don't think we are all perverts. Are all the people who enjoyed the movies Traci Lords made when she falsely claimed to be of legal age "very unsavory." Or was it OK to watch them when you thought she was of legal age, but unsavory to do so now?

    There's a good chance that engaging in a sexual relationship with a 16-year-old could screw up there life (no guarantee, but yeah, a good chance). But looking at a naked picture of that same teen isn't likely to hurt them at all. We'd have a better chance reversing the kind of idiocy the Bandy case illustrates if we stopped pretending that nobody's interested in sexy pictures of teenagers except for a few unsavry sickos.

  • WLM||

    *If you're goin' to start playing around on pornographic sites, and you come across child pornography then, you know, you better accept the consequences of that.*

    This statement from the prosecutor is remarkable. Essentially, if you are engaged in a legal activity (playing around on pornographic sites), but with no intent to view anything more than normal porn, you come across child porn, you better accept the consequences (being labeled a sex offender, jail or worse).

    Is there a law regarding internet porn that provides for strict liability for whatever you happen to come upon? Is this only related to internet porn, or can the prosecutor extend the principle to regular porn? If you buy a standard porn mag like Playboy, and someone else placed a picture of a naked child inside before you bought it, are you subject to prosecution? Does it only apply when you're looking at porn in the first place? If you buy a video of Lion King, and in the middle someone has spliced in a sex scene involving a child, do you go to jail?

    You on the hunt for a Jennifer Aniston nip slip? Do you feel lucky, punk? Well, do ya?

  • ||

    Legalize it and tax it. Nuff said.

  • ||

    What I am trying to say is that people who view/download/visit websites/share are contributing to the demand for the product of illegal activities, even if they are not paying. They are perpetuating it.

    I guess all those cops and prosecutors who also had to look at the offending images (for free!) were perpetuating child rape as well.

    Thoughtcrimes are easy to prove... anyone can join the ever-widening circle of guilt.

  • Robert||

    Laws have long recognized explicitly or implicitly exceptions for the people enforcing them. What's harder is getting exceptions for persons reporting on violations of the laws, or studying criminal behavior. How can the gen'l public evaluate the laws without being able to examine examples of what is illegal? How about legislators? If no exceptions are made, then it becomes easier to enact the laws (because it's not yet illegal to examine what the law would make illegal) than it is to repeal or modify them -- unless repeals or modifications are made more or less blindly.

  • ||

    I agree with Another Crazy Libertarian and Parse in their thought processes. There was a Brooke Shields movie, the Blue Lagoon, and she was protrayed in the movies as young as ?13? Is watching Brooke Shields porn under the laws in Arizona now? If she was actually 13, but an of age stand-in was used, is it porn if you THINK you are seeing a 13 year old? The movie is released with the idea that an of age stand-in is used, but it is discovered that inadvertently a scene was released with the 13 year in it? BTY, does anybody know the status of those Traci Lords films - are they officially child porn and possesion equals law breaking?

    On a slightly different tack, is child nudity the same as child porn? If a friend shows me his 3 (or to do a thought experiment, a 10 year old, or 13 year old) year in the bath, is that porn? What if it is e-mailed? What if it is posted on you-tube? Does the number of people you show (for free) the picture determine if it is porn?

    I'm libertarian because this case shows the pernaciious affect of too many laws enforced by an unreasoning mob mentality, as well as the fact that government officials (INCLUDING JUDGES)simply refuse to act in accord with common sense and decency. The prosecutor obviously is playing to popular opinion, but the judge is no better. And finally, we have to look at ourselves, because we elect representatives who refuse to oversee the legal system. Other than the Nifong case, when was the last time a judge or prosecutor was held liable for the startling number of people found convicted who were proven to be innocent? The outrage is that it is NOT EVEN INVESTIGATED

  • Larry A||

    I was able to clean up the PC (probably should've bleached the desk, chair, and mouse, too) but who know what files were tucked away that I couldn't detect.

    SOP at our offices was to wipe computers and start over.

    I'm content that the appropriate sanction was imposed to hold him accountable, teach him a lesson, teach him that this isn't fun and games. If you're goin' to start playing around on pornographic sites, and you come across child pornography then, you know, you better accept the consequences of that.

    I.e. getting screwed over by the government.

    It's a good thing he only got probation for showing someone a Playboy. If they put people in prison for that the half-dozen teenage males left running around loose would get awfully lonely.

  • ||

    (I'll say it: someone might willingly view "child porn" and not be a "very unsavory person." It seems clear to me that plenty of people find adolescents aged 16-18 particularly sexually attractive. I don't think we are all perverts. Are all the people who enjoyed the movies Traci Lords made when she falsely claimed to be of legal age "very unsavory." Or was it OK to watch them when you thought she was of legal age, but unsavory to do so now?

    Um, I was not discussing older teenagers, or teenagers in general. To repeat myself, I was talking about CHILD PORN. Not "child porn" in the under-18 sense.


    ACL, John, parse, etc.,

    I wasn't defending prison sentences, or advocating "preventative measures", etc. I haven't even addressed any of that at any point on this thread.

  • Robert||

    No, neither Brooke Shields nor the Lows -- http://users.bestweb.net/~robgood/lather.htm -- are porn, because they're not in sexual poses.

    What may qualify as kiddie porn was a pair of kids doing the "penis and vagina dance" (obviously faux impromptu hanging splits) in a documentary about some dying Cambridge Mass. leftist that was shown a lot on the Municipal Broadcasting Co.'s (New York City) channel 31 ~20 years ago as the middle part of a 3-piece compilation of movies about children funded by one of the National Endowments, made & shown during Ed Meese's time as att'y gen'l. Gov't can be amazingly 2-faced. Or it's just a matter of the left & right hands not communicating in an outfit that big.

  • Tin Foil Yarmulka||

    Maybe this is just a dry run for after the forceful military take over if Obama-or any other anti-war,liberal traitor-wins the elections.

    If you say anything against our fight for democracy, CIA operatives will hack into your comp, plant kiddie porn and lock you away for 90 years. That's if they wanna be nice and not use the "Putin Option."

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