Jack Weinstein, a federal judge in New York City who for years has criticized penalties for people caught with child pornography as excessively rigid and harsh, was recently called upon to sentence a man who had pleaded guilty to possessing two dozen photos and videos. The federal sentencing guidelines recommended a prison term of six-and-a-half to eight years. Instead Weinstein sentenced the defendant—identified by his initials, R.V.—to time served (five days), a fine, and seven years of supervised release.
"The applicable structure does not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment, with resulting unnecessary cost to defendants' families and the community, and the needless destruction of defendants' lives," Weinstein wrote in a 98-page explanation of his reasons for departing so dramatically from the guidelines. "Removing R.V. from his family will not further the interests of justice; it will cause serious harm to his young children by depriving them of a loving father and role model, and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."
R.V., a 53-year-old father of five who lost his job as a restaurant manager after he was arrested, told NBC News he came across the images that led to his arrest while looking at adult pornography. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading." He added that "I feel very remorseful," and "it's something that will never happen again." NBC reports that "the man also had 'sexual' chats with underage girls online, but there was no evidence he sought physical contact with minors." A psychiatrist testified that R.V. does not pose a threat to his own kids or other children.
Unlike other child pornography cases in which Weinstein has resisted imposing draconian sentences, this one does not involve a mandatory minimum. Had R.V. been convicted of receiving child pornography rather than mere possession (essentially the same offense, since downloading an image counts as receiving it), Weinstein would have had no choice but to impose a five-year sentence. But since the federal sentencing guidelines are merely advisory, Weinstein was not bound by them in sentencing R.V., although prosecutors can still challenge his sentence as an unreasonable departure from the recommended range.
University of Utah law professor Paul Cassell, a former federal judge who agrees that at least some child pornography sentences (such as life for mere possession) are excessive, thinks Weinstein gives short shrift to the injury caused by looking at images of sexually abused children. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images," Cassell told NBC News. "It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives."
Granted that knowing those images are out there causes distress, the damage done by one additional download is hard to pin down. Furthermore, invasions of privacy are traditionally treated as torts rather than crimes. It is hard to think of another situation in which someone could get up to 20 years in prison (the maximum for possession of child pornography under federal law) for invading someone's privacy, no matter how humiliating and painful the consequences.
Cassell also argues that "the viewing has a market-creation effect" and "ends up leading inexorably to the rape of children." Here, too, the contribution of one additional viewer seems negligible, especially because people who look at child pornography nowadays almost always obtain it online for free. If R.V. did not pay for these images, let alone commission them, it is hard to see how his viewing of them encouraged the production of more.
Even if you agree that looking at certain pictures inflicts a real injury and should be treated as a crime, the penalties recommended by the guidelines (which were boosted at the direction of Congress) seem utterly disproportionate, especially when compared to the penalties for violent crimes. In New York, for example, you could kill someone and still get out of prison sooner than R.V. would have under the guideline sentence. Someone who actually rapes a child could get a shorter sentence than the federal guidelines recommend for looking a pictures of someone raping a child.
Weinstein is not alone in viewing the recommended sentences for child pornography offenses that do not involve production as excessive. A few years ago, the Associated Press reported that "federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes." In a 2009 critique of the guidelines for child pornography offenses, federal public defender Troy Stabenow noted that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years. The comparison, Stabenow wrote, "demonstrates the absurdity of the system."