Teens who text each other explicit images could be subject to 15 years in federal prison under a new bill that just passed the House of Representatives. Rep. Sheila Jackson Lee (D-Texas), ranking member of the House Judiciary Subcommittee on Crime, has called the measure "deadly and counterproductive."
"While the bill is well intended, it is overbroad in scope and will punish the very people it indicates it is designed to protect: our children," Lee said during a House floor debate over the bill. The bill would also raise "new constitutional concerns" and "exacerbate overwhelming concerns with the unfair and unjust mandatory minimum sentencing that contributes to the overcriminalization of juveniles and mass incarceration generally."
Introduced by Rep. Mike Johnson (R-Louisiana) in March, the "Protecting Against Child Exploitation Act of 2017" passed the House by an overwhelming majority last week. Only two Republicans—Reps. Justin Amash of Michigan and Thomas Massie of Kentucky—voted against the bill, along with 53 Democrats.
"The bill prohibits some conduct that the Constitution does not allow Congress to regulate, and Rep. Amash opposes the expansion of mandatory minimums and crimes that are already prosecuted at the state level," a spokesperson from Amash's office explained of his opposition.
Most of the opposition centered on the bill's effective expansion of mandatory-minimum prison sentences. One vocal critic was Rep. Bobby Scott (D-Virginia), who called the legislation "particularly appalling" because it would "apply to people who I think we should all agree should not be subject" to long mandatory minimums. "Under this law, teenagers who engage in consensual conduct and send photos of a sexual nature to their friends or even to each other may be prosecuted and the judge must sentence them to at least 15 years in prison," said Scott on the House floor.
What's more, "the law explicitly states that the mandatory minimums will apply equally to an attempt or a conspiracy," Scott noted:
That means if a teenager attempts to obtain a photo of sexually explicit conduct by requesting it from his teenage girlfriend, the judge must sentence that teenager to prison for at least 15 years for making such an attempt. If a teenager goads a friend to ask a teenager to take a sexually explicit image of herself, just by asking, he could be guilty of conspiracy or attempt, and the judge must sentence that teenager to at least 15 years in prison.
But Johnson, a freshman congressman (and vocal Trump supporter), dismissed opponents' concern that the measure would be used in ways he didn't intend it to be used. "In Scripture, Romans 13 refers to the governing authorities as 'God's servants, agents of wrath to bring punishment on the wrongdoer,'" he said in response to their floor concerns. "I, for one, believe we have a moral obligation, as any just government should, to defend the defenseless."
Johnson has repeatedly claimed that his bill will close "loopholes" that allow child pornographers to go free. But in the only "loophole" case he has pinpointed, it's overreaching federal prosecutors who bungled bringing a bad guy to justice, not some fundamental flaw in our criminal code. In that case, 19-year-old Anthony Palomino-Coronado was accused of molesting his 7-year-old neighbor repeatedly over the course of several months. In investigating the case, police discovered one photo of the abuse that had been taken and subsequently deleted from Palomino-Coronado's phone.
Combined with the victim's testimony, the photo should have guaranteed state police little trouble in trying to prosecute Palomino-Coronado for sexual abuse of a child. But federal prosecutors preempted such a prosecution by deciding to instead try Palomino-Coronado in federal court for producing child pornography.
It was a bad call—the case "could have been brought in state court and the defendant would have been subjected to extremely long, lengthy prison time," Rep. Scott noted during floor debate. But federal law against producing child pornography requires a minor to have been recruited "for the purpose of" producing photo or video. In this case, the court concluded, the longterm pattern of abuse, combined with the fact that only one explicit image was ever taken (and subsequently deleted), meant the perpetrator's purpose was not producing child porn but, rather, his own sexual gratification. If the feds had simply let the state handle the case as one of sexual abuse, Palomino-Coronado would probably be behind bars right now; instead, they overreached with the child porn charge, and now he's free.
Rather than learn from that mistake, the Department of Justice (DOJ) pushed for federal lawmakers to amend U.S. criminal code to make their prosecutorial overreach more permissible. According to Rep. John Conyers (D-Michigan), the changes in Johnson's bill were "requested by the unit at the Department of Justice that enforces the laws against child pornography."
Legislators aren't supposed to be mere puppets for law enforcement agencies. Yet here we are: A bill specifically requested by DOJ was rushed through the House of Representatives with near-universal support from Republicans and also a lot of support from Democrats. Opposition to the bill from a committed group of criminal justice reformers was ignored. And amendments aimed at fixing the most problematic parts of the bill—its reliance on mandatory minimum sentencing schemes and its failure to exclude minors trading photos with other minors from child-porn prosecutions—were both voted down.
"While we all agree that no child pornography offense should go unpunished, we cannot overlook the consequences of mandatory minimum sentencing," said Conyers on the House floor. Under current U.S. law, first-time offenses for child porn are punishable by mandatory imprisonment of at least 15 years, with repeat offenders subject to 25- and 35-year minimums. "By modifying and expanding [federal law] to include several new ways in which to violate the prohibition against the production of child pornography, the bill would subject new classes of defendants to mandatory minimum sentences," he explained.
Supporters of the legislation said there's no reason to think that federal prosecutors will use the bill against teen sexters, since they have not done so in the past. But state prosecutors have. And we're also up against a new federal administration—one that has explicitly endorsed mandatory minimums and other tough-on-crime endeavors. So, no, the FBI probably isn't about to start rounding up teen sexters in mass. But what will happen the next time ICE finds a racy image on a 17-year-old Mexican immigrant's phone?
We simply "cannot rely on prospective discretion to protect juveniles under this statute," said Conyers, "given the new policy of the Attorney General. We are under a new regime here at the federal level, and I can't depend on relying on the prosecutorial discretion to protect juveniles under this statute."
Opposing lawmakers also rejected the argument that while mandatory minimum sentences might generally be bad, they were OK in this instance because of our (rightful) revulsion at people who exploit children.
"We have to recognize that mandatory minimums in the code did not get there all at once. They got there one at a time, each part of a larger bill, which, on balance, might seem like a good idea," said Scott. "The only way to stop passing new mandatory minimums is to stop passing bills that contain or broaden the application of mandatory minimums. Giving lip service to the suggestion that you would have preferred that the mandatory minimum had not been in the bill and then voting for the bill anyway not only creates that new mandatory minimum, but it also guarantees that mandatory minimums will be included in the next crime bill."
A statement of opposition filed by Reps. Conyers, Lee, and several others stated that while "no child pornography offense should go unpunished," Johnson's bill "would subject more individuals to mandatory minimum penalties at a time when the federal criminal justice system should be moving away from such sentencing schemes."
* This post has been updated to add a statement from Rep. Justin Amash.