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Judges Find Federal Child Porn Sentences Are Much Longer Than Jurors Consider Just

In one case, the term sought by prosecutors was 17 times longer than the jury recommended.

It is not hard to see how we ended up with absurdly long sentences for possession of child pornography. No legislator wants to seem soft on people who like to look at this awful stuff (who are commonly equated with child molesters even if they have never laid a hand on a single kid), and there does not seem to be any political downside to demanding ever harsher punishments for them. The assumption seems to be that, as far as the public is concerned, there is no such thing as an excessively severe penalty for child pornography offenses, even when they do not involved production or profit.

A federal judge in Cleveland recently put that assumption to the test by polling jurors on the appropriate sentence for a man they had convicted of receiving, possessing, and distributing child pornography. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), or the term indicated by federal sentencing guidelines (27 years).

As Eli Hager notes in a piece published by The Marshall Project, it is highly unusual for a judge to consult jurors about sentencing, which outside of death penalty cases is generally considered beyond their purview. But U.S. District Judge James Gwin, an advocate of this approach, was curious to see whether the sentences allowed by law reflect the community's sense of just punishment. The defendant, Ryan Collins, was convicted last October after police found more than 1,500 child porn images on his computer. He was charged with distribution because he also had peer-to-peer file sharing software. Last week, taking a cue from the jury, Gwin sentenced Collins to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair.

Although notionally a cross-section of the community, the 12 jurors in Collins' case may not be a representative sample of the general public. But this is not the only federal jury that has implicitly questioned the sentences that members of Congress and the U.S. Sentencing Commission (which has to incorporate statutory minimums into its guidelines) have decided are appropriate in cases like this. Mark W. Bennett, a federal judge in Iowa, told Hager:

Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence, every time—even here, in one of the most conservative parts of Iowa, where we haven't had a "not guilty" verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence.

That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that's baloney.

Current sentences do not reflect public opinion so much as the opinion of mindlessly tough-on-crime legislators like Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who still thinks federal sentences for child pornography offenses are too lenient.

Reason TV's interview with Bill Keller, The Marshall Project's editor in chief:

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Hugh Akston||

    That judge sure has the look of a guy who doesn't want child pornographers to be punished too harshly.

  • Almanian!||

    +1 "show us on the doll where..."

  • John||

    If sentencing guidelines did not punish people more than societal norms dictate, there would be point in having them and they would have no effect on sentencing even if you did.

  • Hey Nikki!||

    Good point, John.

  • np||

    Great. So now let's start addressing the child porn produced on a daily basis right under our noses and throw those sexting teens into the rape-cage for 27 years too. I mean, it's not like you can get a job after being a registered sex offender anyways.

  • Andrew S.||

    Can I use this thread to say again that Grassley is a piece of shit? No? Oh well. Grassley's a piece of shit anyways.

  • Veridicus||

    The majority of those accused of possessing "child pornography" seem to be everyday contributing citizens: teachers, doctors, policemen, lawyers; even religious or government leaders. Given these apparently stable and inoffensive people, should we not perhaps ask ourselves if what they are accused of is really all that evil and harmful?

    To what extent do ignorance, superstition, hate, and hysteria take precedence over scientific knowledge and logic in peoples' minds regarding "child pornography?" According to several studies, including Howitt, D (1995) Pornography and the paedophile: Is it criminogenic? British Journal of Medical Psychology, 68, 15-27, the viewing of this material is harmless and does not lead to behaviors which are currently considered to be criminal. Many – perhaps most - of those charged with possessing and viewing so-called "child pornography" have never been involved with a child. Also, the conjecture that all "pornography" is taken without consent is not borne out by empirical facts, and the delusion that children are hurt every time their image is viewed simply is not rational – the child most likely never knows about such viewings. For an in depth discussion of this subject in a scientific journal, see http://www.shfri.net/effects/effects.cgi

    For a free downloadable 94 page book on these issues which includes voluntary anonymous testimony from now grown former child "actors," see http://www.shfri.net/shfp/beyond/beyond.html

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