Last week a Florida judge sentenced Daniel Enrique Guevara Vilca, a 26-year-old with no criminal record, to life in prison without the possibility of parole for looking at forbidden pictures. A jury convicted Vilca on 454 counts of possessing child pornography, one for each image found on his computer. Under Florida law, each count is a third-degree felony punishable by up to five years in prison. Sentencing guidelines indicated a minimum term of 152 years, although Collier Circuit Judge Fred Hardt had discretion to impose a lighter sentence if he concluded it was justified by factors such as constitutional infirmity or Vilca's mental health. "Had Mr. Vilca actually molested a child," The New York Times notes, "he might well have received a lighter sentence."
While it is hard to make sense of that disparity under any set of values or priorities, the draconian punishments prescribed by state and federal laws for mere possession of child pornography seem to be based on the premise that anyone who looks at records of heinous acts must also be committing them or at least planning to do so. But as I noted in the July issue of Reason (and as the Times also points out), that simply isn't so: Research indicates that child porn consumers, like fans of violent movies, do not necessarily copy what they see. As Troy Stabenaw, a federal public defender who wrote a devastating 2009 critique (PDF) of federal sentencing guidelines for child pornography, tells the Times, "we ought to punish people for what they do, not for our fear."
The Times also quotes University of Utah law professor Paul Cassell, a former federal judge, who makes the familiar argument that "consumers of child pornography drive the market for the production of child pornography, and without people to consume this stuff there wouldn't be nearly as many children being sexually abused." How relevant is that concern now that people typically obtain child porn online for free? Steve Maresca, the assistant state attorney who prosecuted Vilca, tells the Times "these children are victimized, and when the images are shown over and over again, they're victimized over and over again." That claim seems even more problematic, since any such injury would require (at the very least) that victims know when people are looking at images of them. It also would not apply to child pornography featuring victims who are no longer alive.
I'm not sure either of these arguments is strong enough to justify criminalizing mere possession (as opposed to production) of child pornography. But I am sure the offense is not in the same moral ballpark as other crimes that are punished by life sentences. Cassell (who as a judge criticized absurdly harsh mandatory minimum sentences) agrees:
A life sentence for the crime of solely possessing child pornography would seem to be excessive. A life sentence is what we give first-degree murderers, and possession of child pornography is not the equivalent of first-degree murder.
My Reason piece, "Perverted Justice," cites more examples of senselessly severe child porn penalties, including the 200-year sentence received by a former Arizona high school teacher. Jesse Walker considered "The Blurry Boundaries of Child Porn" in a 2009 Reason essay.