Dirty Old Men and Judicial Deviation


Federal judges are asking the U.S. Sentencing Commission to give them more flexibility in imposing penalties on people for possession of child pornography, saying the recommended punishments are excessive in some cases. Although federal sentencing guidelines, unlike minimum sentences set by statute, are no longer mandatory, judges still worry about being overturned if they deviate from them too dramatically or too often. In child pornography cases, the urge to deviate appears to be fairly common. In an interview with USA Today, Jay Zainey, a U.S. district judge in New Orleans, "cites the hypothetical example of a frail 80-year-old widower who views child pornography on his home computer and is not a risk to act against children." Under the guidelines, such a defendant would receive a minimum sentence of five years. "That could be a life sentence," Zainey says. "You must have tough penalties for child pornography—it's a horrible offense and you have to have stiff penalties—but you should be able to look at each case individually."

I agree with Zainey that a five-year sentence for this fictional octogenarian would be excessive. In fact, I'm not convinced that mere possession of child pornography (as opposed to production of it, which involves the sexual abuse of children) should be a crime to begin with, let alone a felony. It's telling that Zainey's rationale for judging five years too long a sentence in this hypothetical case is the defendant's predicted propensity to commit crimes against children. In other words, people are being sent to prison for possessing child pornography based not on their contribution to the demand for the product, which encourages further abuse of  children (as the official argument goes), but based on an assessment of their likelihood to abuse children themselves. They are being punished, in essence, for future crimes they probably never would have  committed. Or, if you prefer, they are being incapacitated to stop those possible crimes from happening, kept in preventive detention under the guise of retribution (as opposed to preventive detention under the guise of psychiatric treatment, which is what happens when states lock sex offenders up in mental hospitals after they've completed their sentences).

The assumption that everyone caught with pornography featuring minors is a potential child molestor helps explain the tougher-is-always-better approach to this offense. As I noted in a 2007 column, that tendency can reach jaw-dropping extremes, as with the Arizona man who was punished more severely for looking at pictures of sexually abused children than he would have been for committing an actual sexual assault on a child. Jesse Walker explored "the blurry boundaries of child porn" in the July issue of Reason.