Should People Who Look at Child Porn Go to Prison for Thousands of Years or Only Hundreds?



WPTV, the NBC affiliate in West Palm Beach, Florida, reports that Matthew Taby, a 50-year-old engineer caught with child pornography on his computer, "could face more than 3,000 years of jail time." More amazing than the remote possibility that Taby's mummified corpse will be retained by the Florida Department of Corrections for the next three millennia is the virtual certainty that he will spend the rest of his life in prison unless he successfully appeals his sentence.

Taby's lawyer, Richard Kibbey, explains that prosecutors charged each of 200 videos on the hard drive attached to Taby's laptop as a separate count of possessing child pornography. (They alleged that there were as many as 1,000 videos but did not charge him in connection with the rest.) Possessing child pornography is a third-degree felony, punishable by up to five years in prison, but becomes a second-degree felony, punishable by up to 15 years in prison, in cases involving 10 or more images. Florida's sentencing guidelines, from which a judge may deviate only in extraordinary circumstances, prescribe a minimum term of 208 years for the charges Tabey faces, even though he has no criminal record.

That's eight years longer than the mandatory minimum sentence that Morton Berger, a former Arizona high school teacher, received for his child pornography collection in 2003. But Arizona is still the champion of pointless punitiveness in this area, since Berger was charged with possession of just 20 images. It says something about the mindlessly draconian penalties routinely mandated by legislators eager to show how tough they are on crime that we even talk about sentences longer than the maximum human life span. When there is no possibility of parole (which Florida abolished for almost all offenses in 1983), any sentence longer than a few decades is a life sentence for a middle-aged man.

No one deserves a life sentence for looking at forbidden pictures, no matter how loathsome. Assuming it should be treated as a crime at all, possession of child pornography is certainly not on the same moral plane as, say, mass murder. A life sentence is far more severe than the punishment prescribed by Florida law for crimes that are indisputably worse. If Taby had produced child pornography instead of merely viewing it, he would have faced a much lighter sentence: up to 15 years, with no mandatory minimum. Even the biggest fan of mass incarceration should be able to see the injustice of such absurd disparities (which also occur under federal law). Yet Assistant State Attorney Vicki Nichols defended the decision to charge Taby with 200 counts, saying, "We're allowed to overkill because [Taby] committed a thousand crimes. He's the reason he's facing thousands of years." Although Nichols did not mention it, prosecutors could argue that they are exercising restraint, since every child depicted in a single image can be counted as a separate offense under Florida law.

"The prosecutors have misplaced their zeal," Kibbey says, by throwing the book at consumers of child pornography instead of the producers, who are harder to catch and convict. "They go after the low-hanging fruit."

Remember when 152 years for possessing child pornography seemed like a lot? I considered the mentality underlying such penalties in the July 2011 issue of Reason.