Our misguided child porn laws do little to protect children

February 11

This Dec. 11, 2013 image from video provided by WJLA-TV, shows Ryan Loskarn, former chief of staff to Sen. Lamar Alexander, R-Tenn., being escorted from his Washington home by U.S. Postal Inspector police. Loskarn killed himself in Maryland, just weeks after the former staffer’s arrest on child pornography charges.(AP Photo/WJLA-TV)

(Note: From time to time, I’ll be inviting writers, reporters, and experts on the criminal justice and civil liberties beat to contribute guests posts. Our first guest post comes from my former colleague Jacob Sullum, a national syndicated columnist and senior editor at Reason magazine. — Radley Balko)

In the letter he wrote on the day he hanged himself last month, Ryan Loskarn talked about the shame and guilt he felt after he was caught with child pornography. Loskarn, former chief of staff to Sen. Lamar Alexander (R-Tenn.), did not mention fear of prison, perhaps because he had already resolved to end his life. But for anyone in his position who planned to stay alive, the prospect of spending years behind bars would loom large.

The legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. In a 2009 analysis, federal public defender Troy Stabenow shows 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.

Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years — the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet nowadays is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking.

The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos for something of value, including other photos. Federal agents reportedly found 200 child porn videos on Loskarn’s hard drive when they arrested him on December 11.

Ninety percent of federal child-porn prosecutions involve “non-production offenses” like Loskarn’s: downloading or passing along images of sexual abuse, as opposed to perpetrating or recording it. As a result of congressional edicts, the average sentence in such cases rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission (USSC). The penalties have become so severe, the commission noted, that judges frequently find ways to dodge them, resulting in wildly inconsistent sentences for people guilty of essentially the same conduct.

While the original justification for criminalizing possession of child pornography was that demand creates supply (an argument that has been weakened by the shift to free online distribution), the escalation of penalties seems to be driven largely by the assumption that people who look at these images are all undiscovered or would-be child molesters. Is that true? The USSC found, based on criminal records and additional information in presentencing reports, that one in three federal defendants sentenced for non-production offenses in the previous decade had known histories of “criminal sexually dangerous behavior” (including prior child pornography offenses). Tracking 610 defendants sentenced in fiscal years 1999 and 2000 for eight and a half years after they were released, the USSC found that 7 percent were arrested for a new sexual offense.

Even allowing for the fact that many cases of sexual abuse go unreported (as indicated by victim surveys), it seems clear that some consumers of child pornography never abuse children. “There does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending,” says Karl Hanson, a senior research officer at Public Safety Canada who has co-authored several recidivism studies.

Why would anyone look at this horrible stuff if he was not inclined to imitate it? Troy Stabenow put it this way in a 2009 interview with ABA Journal: “People who watch movies like Saw and Friday the 13th are being titillated by the act of torture and murder. That doesn’t mean that they’re going to go out and commit torture and murder.”

Dean Boland, an Ohio defense attorney specializing in child pornography cases, says a substantial share of defendants were themselves victims of sexual abuse as children and look at these images as a way of working through the trauma. That is how Ryan Loskarn explained his attraction to child pornography. “I found myself drawn to videos that matched my own childhood abuse,” he wrote. “I pictured myself as a child in the image or video. The more an image mirrored some element of my memories and took me back, the more I felt a connection.”

Taking Loskarn at his word (and what is essentially a dying declaration probably should be given considerable weight), he not only had no desire to abuse children; he was not even titillated by the videos he collected. It hardly makes sense to treat someone like that as a criminal, let alone one who deserves to spend eight years in prison (the average sentence for non-production child porn offenders).

In fact, it is not clear why mere possession of child pornography should ever be grounds for locking people in cages. The Supreme Court’s main rationale for upholding the ban on possession was that demand for this material encourages its production, which necessarily involves the abuse of children. But this argument has little relevance now that people who look at child pornography typically get it online for free. Furthermore, people who possess “sexually obscene images of children” — production of which need not entail abuse of any actual children — face the same heavy penalties. “They are not protecting a single child,” Boland says. “They are throwing people in prison for having dirty thoughts and looking at dirty pictures.”

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Radley Balko · February 11