The Corner

Re: Noble People in a Thankless Task

Jay, this is so true. Investigators and prosecutors see and hear pretty gruesome things in terrorism and organized-crime cases, but nothing in my experience prepared me for reviewing the evidence in child-porn cases. 

Let me share one of the most excruciating aspects — fortunately one that doesn’t require getting graphic. Contrary to how it works with most crime, the government very often does not know who the subject of an Internet porn case is until the very end. That is, you know that there is traffic in prohibited images over a home computer, but you often don’t know who in the home has been using the computer for those purposes until the day the agents show up with a search-warrant. Frequently, it turns out to be an adolescent or barely-out-of-adolescence male (ages 16–22), and the family is just horrified. In the first moment of shock — and candor — there is anger at and shame over what the kid has done; the demonizing of the investigators that your reader talks about comes later when supporters have had time to process what has happened and the jail time it potentially portends.

Which brings me to my point. The desire of politicians to appear tough on crimes like child porn and narcotics trafficking frequently leads Congress (and state legislatures) to enact draconian penalties. For understandable reasons, they don’t trust judges to slam the defendants who really deserve to be slammed, so the pols prescribe adhesive mandatory-minimum penalties — in the case of Internet trafficking in child-porn, it’s ten years, minimum – I can’t recall the max, but it’s gotta be upwards of 20 years’ imprisonment. So here’s the problem: A lot of the defendants turn out to be barely adults themselves, at least chronologically. We’d get 18-, 19-, 20-year-old kids. In terms of maturity, they were obviously much younger. Unlike prior generations, they had been weaned on the perverse violence and porn so readily available on the ‘net (over-exposure contributed to mightily by the fact that they were either in one-parent homes or two-parent homes where both parents worked — so that, in effect, the computer became the baby-sitter). Unlike 18-year-olds when I was 18 (in 1977), these kids have seen so much they are inured to it, and a lot of them gravitate to kiddie-porn because it’s so shocking and they’ve otherwise lost their capacity to be shocked.

So the law of unintended consequences takes hold: We enact monstrous penalties because we want to discourage the abuse of children, but then we find that a lot of the defendants are almost children themselves — man-children who are not going to do well in prison, to put it mildly (the average computer-geek Internet porn defendant is nowhere near as hard as a street-gang kid). Yet, they’d be looking at no less than ten years in the slammer. These, thus, became the worst cases I’ve even been involved in — cases where you’d have to assess very carefully how many images there were and how truly awful they were because you’d be balancing against that assessment whether to send a virtual kid to prison for a longer stretch than Junior Gotti got for Gambino Family hi-jinks in 1999 (about six years). There was no middle ground: Either dismiss the case or get ten years in jail.

I came away with two thoughts. First, the really awful offenders in this area are the people who produce these images and initially get them into the stream of commerce. Judges can be trusted to throw the book at those guys. To impose hefty mandatory minimums on downstream distributors who are trading images is unnecessary, and it ends up meaning you can’t do something sensible — like prosecute the man-children (frequently first-offenders) with the understanding that they are going to get reasonable sentences, deferred prosecution arrangements, etc.

Second, after dealing with a raft of child-porn cases, I was more than ready to return to the relative emotional calm of dealing with terrorists. I can’t say enough good things about the dedication of police and prosecutors who have the steel to work in this horrifying arena.

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