Mega-author John Grisham was recently interviewed by The Telegraph's Peter Foster, and the topic turned to overincarceration in America. Grisham—best known for producing the paperbacks your dad reads on vacation and every plucky-young-lawyer-rights-wrong movie of the past two decades (The Firm, A Time to Kill, The Pelican Brief…)—has a history of advocacy on this front, and the whole conversation would be pretty unremarkable had Grisham not veered into talking about sex crimes and child pornography.
"We have prisons now filled with guys my age. Sixty-year-old white men in prison who've never harmed anybody, would never touch a child," he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week. "But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn."
Grisham goes on to talk of a "good buddy from law school" who went to prison for three years after downloading porn featuring 16-year-olds*:
"His drinking was out of control, and he went to a website. It was labelled 'sixteen year old wannabee hookers or something like that'. … He shouldn't 'a done it. It was stupid, but it wasn't 10-year-old boys. He didn't touch anything. And God, a week later there was a knock on the door: 'FBI!' and it was sting set up by the Royal Canadian Mounted Police to catch people—sex offenders—and he went to prison for three years."
You can probably guess how the online progressivesphere reacted.
Now granted, Grisham's assessment of the problem here comes across a bit like someone's drunk uncle at a wedding conversation you don't want to be in. "Grisham certainly could have chosen his words better," as Radley Balko wrote in a wonderful analysis of this Grishamgate at The Washington Post. "But he isn't wrong, and the invective he's receiving right now is both misinformed and wildly over the top. There are Twitter users calling him a pervert, or for his home to be raided by the FBI."
Exemplifying the critiques is this Think Progress piece from Jessica Goldstein. Right away Goldstein makes it a matter of who the "real victims" are, painting herself as the champion of sexually-exploited children and Grisham as singing sympathy for child abusers. Nevermind that Grisham said nothing of the sort; merely suggesting that mandatory minimums for those who view child porn are unwise was enough for a sharpshooter like Goldstein to intuit his pro-kiddie porn stance.
After setting up this false dichotomy—you are either for all of our current criminal justice policies concerning child porn (no matter how ineffectual or unfair) or you're indifferent to the suffering of child victims, you monster—Goldstein mocks "Grisham's concern for the 60-year-old men," adding:
Because that's definitely the problem with our prisons: they are overrun with middle-aged white dudes, serving time for insignificant non-crimes. Not black men who were busted with marijuana, no siree.
Why is it a contest? Can't we care about minimizing the U.S. police state in general? Isn't it possible to advocate—as Grisham does—for rolling back mandatory minimums for both aging white dudes who look at teen porn and black teens who get caught with pot?
Grisham has already apologized for his comments, writing on his website that, "Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography—online or otherwise—should be punished to the fullest extent of the law." The man has a new book to promote, so his backtracking is understandable. But his original sentiments shouldn't require an apology.
According to a 2012 report from the U.S. Sentencing Commission, the average prison sentence for possession of child porn was 95 months in 2010, up from 54 months in 2004. As Reason's Jacob Sullum noted here in February, federal law requires a mandatory minimum sentence of five years for "receiving child pornography", which could mean looking at or downloading a single image. With enhanced criminal penalties "based on factors that are extremely common", people who look at sexualized images of minors can be punished more harshly than making and disseminating the images or those who actually molest children. And in 30 states, the age of sexual consent is 16, notes Balko—making it a crime to download sexual images of a 16-year-old but not to physically have sex with them.
Goldstein scoffs at the idea that viewing child porn online is different than directly sexually abusing children. "If you engage in pedophilia on the internet, you are a real pedophile," she writes.
But there is no way to "engage in pedophilia." It's a mental disorder, defined as "an intense and recurrent sexual interest in prepubescent children". Because U.S. jurisprudence is (theoretically) based on people's actions, not their private thoughts or desires, we have laws against things like sexually abusing children, creating or distributing child pornography, and selling minors into the sex trade, but not against pedophila per se. Pedophilia alone is an illness, not a crime.
Some pedophiles do engage in criminal acts against children, but many don't. Conversely, many of the people who do molest, traffic, or make porn featuring children are not sexually attracted to them. "In fact, research shows, about half of all child molesters are not sexually attracted to their victims," according to law professor Margo Kaplan in The New York Times.
Putting definitions aside, Goldstein is suggesting that viewing child porn online is morally equivalent to making child porn or personally physically molesting children. She keeps coming back to how a hypothetical victim would feel once they were older, knowing that "images of you, of underage, naked you, are circulating the internet as you try to go about your life and there is nothing you can do." People who look at these images are contributing to the victim's pain, she admonishes.
But while the victim scenarios Goldstein conjures and relays are horrific and heart-wrenching, how is the solution possibly to get tougher on people who had no contact with these children and nothing to do with producing these images? In what way does that make anyone safer? The solution to all of our social ills can't simply be to keep casting wider and deeper prison nets.
"There is no legal difference between looking at pornography of a 16-year-old and looking at pornography of a 10-year-old," writes Goldstein (emphasis mine). True, and yet: the absence of this legal difference doesn't make 16-year-olds in fact equivalent to 10-year-olds. The absence of this legal difference currently isn't something we must take as now-unchangeable. The absence of this legal difference is, in part, what Grisham was railing against.
It may be wise to have a cultural norm against lusting after teenagers as a grown person, but is it really the same thing to look at sexualized images of 16-year-olds and those of 6-year-olds? Probably not. And pretending it is—and crafting criminal justice policies as if it is—doesn't make any children any more safe from the people that are actually interested in harming children.
Yet responses like Goldstein's point to larger trend: the rise of the carceral left. Or call it the illiberal left, as Conor Friedersdorf did at The Atlantic yesterday. When it comes to eradicating Really Bad Things, these folks deftly demonstrate the true difference between being "liberal" and "progressive".
To them, demonstrating that you find child porn morally reprehensible requires giving zero fucks about things like due process or America's monstrous prison industrial complex or the social and economic costs of it all. Same goes when the issue at hand is sexual assault, bigotry, homophobia, or domestic violence. What are a few false rape convictions if it makes men more likely to embrace affirmative consent standards? Why not add an extra few years prison time because an assailant was motivated by racial animus?
It's maddening, and it's making things worse for the very groups of people progressives claim to to be helping (in addition to, you know, everyone). As Freddie de Boer wrote recently, the burden of increased state power "will inevitably fall on the poor and the black, because that is who the white police state prosecutes with greater zeal than any other." This is the reality of our criminal justice system.
"Let's talk about the prison state we have and not the one you wish we have," de Boer implores carceral leftists. "Let's talk about this America and not the one that you've invented. Because in this America, we know what happens when you give prosecutors and police greater license."
Progressives are able to see our criminal justice system as intolerant, corrupt, and overreaching when it comes to things like the drug war—and yet they cling to the belief that somehow this same criminal justice system is totally capable of handling other issues fairly. They look at a prison system that may be bloated, racially biased, and rife with abuse and say, but if we just expanded it in the right ways… They look at civil liberties and think they'll remain meaningful if we embrace them ad hoc.
It's genuinely strange, and possibly dangerous. "If illiberal attitudes prevail … the consequences will be dire for all victimized innocents, and for particular classes especially," writes Friedersdorf. But I kind of hope these progressives keep it up. The more willing they are to expose their true colors, the easier it is to challenge the idea that they differ at all from the authority-loving, Constitution-indifferent social-conservatives they once decried.
* It turns out that Grisham was wrong about his friend, who was—The Telegraph later discovered— actually arrested for possessing "13 images, all of children under 18, some under 12." But as far as we know Grisham did not know this—those lampooning him over the past few days certainly didn't—and besides, the particulars of this friend's case are not really the point.