The Corner

More on Child Pornography and Mandatory-Minimum Sentences

I’ve gotten some welcome feedback from friends at DOJ and on the Hill who insist that I had it wrong in last night’s post. They say the mandatory-minimum sentences for child-porn offenses are only five years, not ten as I stated. My post made pretty obvious that I was going from memory of cases that occurred nearly a decade ago – I hadn’t looked up the relevant statute which is why, as I indicated in the post, I couldn’t remember what the maximum penalty was. But I was quite certain the mandatory minimum, which was the subject of much heated debate in cases I was involved in, was ten years. I may be getting senile, but I’m not that senile.

So I’ve now looked it up and confirmed that my memory was accurate. The confusion is that my correspondents are talking about different statutes in the penal code (Title 18, U.S. Code). Sections 2252 and 2252A address, respectively, “Certain activities relating to material involving the sexual exploitation of minors” and “Certain activities relating to material constituting or containing child pornography.” Those statutes do indeed prescribe 5-year minimums (and 20-year maximums). But I was talking about Section 2251, which deals with “Sexual exploitation of children.” Back when I was dealing with these cases (1999–2003), the mandatory minimum penalty was ten years (the max was twenty). The statute has since been amended (see the new version, here), and the mandatory minimum has actually been increased:  “Any individual who violates, or attempts or conspires to violate, this section shall be . . . imprisoned not less than 15 years nor more than 30 years.” (Sec. 2251(e).)

My friends also suggest that I am muddying the distinction between mere consumers of child-porn and dealers, but that’s just wrong. My post made quite clear that I was not talking about — nor implying that the draconian 10-year minimum applied to — people who only collect and view images. I explicitly referred to the imposition of “hefty mandatory minimums on downstream distributors who are trading images.”

Under Section 2251, a person is guilty if he just publishes an ad (which can be a very simple e-mail message) seeking to (among other things) receive, exchange, buy or display “any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.”  Understand: There is no requirement that the offender be involved in the production of photographs or movies — we are not talking about the people who directly coerce and abuse these children; there is no minimum number of images — one will do; there is no age distinction among minors depicted in the images — a 15-year-old girl who looks like she’s over 18 is a minor every bit as much as a four-year-old girl; and there is no prior criminal history requirement — a first-offender is looking at the 10- (now 15-) year minimum.

I think that’s nuts. And mind you, compared to the average person (and even the average prosecutor), I am Atilla the Hun: I would not have the slightest problem imposing capital punishment on the people who actually produce and “perform” in these depictions in which young children are sexually abused. But 10 or 15 years in jail — much more than most hardened criminals get for most crimes — for a young first-offender who trades child-porn images but has no involvement whatsoever in their production is ridiculous. And I’m far from the only person who sees it that way. (See, e.g., this story, circa 2004, involving the case of an 18-year-old first-offender reluctantly sentenced to ten years by Judge Jerry Lynch — my former Criminal Division Chief whom President Obama just appointed to the Second Circuit.) 

No one is saying this isn’t serious misconduct. Downstream actors (including first-offenders) who trade images create and feed the market that induces the creeps who are the source to abuse the children and create the images.  Nor am I against mandatory minimum sentences in principle. I’ve had more than my share of cases in which judges walked or slapped on the wrist guys who deserved real jail time, and I’ve always thought mandatory minimums were a far better solution than comprehensive sentencing guideline schemes. But the mandatory minimums have to be sensible — “Doing it for the children” is not a rationale for failing to distinguish the truly evil from the venial.

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