The Internet is enjoying a good piling on right now at the expense of author John Grisham. In an interview with the Telegraph, Grisham talked about over-incarceration in America. As part of that discussion, Grisham also mentioned that he thinks the laws and sentences for viewing or possessing child pornography are excessive. Cue the Internet outrage machine.

Here’s the relevant passage:

Mr Grisham, 59, argued America’s judges had “gone crazy” over the past 30 years, locking up far too many people, from white collar criminals like the businesswoman Martha Stewart, to black teenagers on minor drugs charges and – he added – those who had viewed child porn online.
“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.
“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn.”
The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a “good buddy from law school” who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing.
“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.
“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.”
“There’s so many of them now. There’s so many ‘sex offenders’ – that’s what they’re called – that they put them in the same prison. Like they’re a bunch of perverts, or something; thousands of ’em. We’ve gone nuts with this incarceration,” he added in his loft-office in Charlottesville, Virginia.
Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.
“I have no sympathy for real paedophiles,” he said, “God, please lock those people up. But so many of these guys do not deserve harsh prison sentences, and that’s what they’re getting,” adding sentencing disparities between blacks and whites was likely to be the subject of his next book.

Grisham certainly could have chosen his words better. But he isn’t wrong, and the invective he’s receiving right now is both misinformed and wildly over the top. There are Twitter users calling him a pervert, or for his home to be raided by the FBI. It isn’t all that different than suggesting that people who criticize the drug laws must be doing or selling drugs.

Take this quote out of context, and one could make Grisham look like he thinks the biggest problem with the criminal justice system is that old white guys are getting locked up for looking at child porn. But context is important. Grisham has spent a great deal of time, money, and influence advocating for criminal justice reform. He helped found the Mississippi Innocence Project, and sits on the board of directors for the Innocence Project in New York. He wrote a nonfiction book about a wrongful conviction, and helped another get published. He testified before Congress about the need for reforming the forensics system, addressing the problems he’s seen firsthand in Mississippi.

Note also that Grisham’s discussion with the Telegraph reporter began with a more general discussion of overcriminalization, including the disproportionate and racially biased drug sentencing laws. Here is Grisham talking about race and the criminal justice system with the American Bar Association:

Grisham said he is troubled by the continuing effect that race has on the fundamental fairness of the judicial system. The cynical enforcement of the death penalty portrayed in “The Confession” is based on several different Texas death penalty cases. But while the problems of racism may have become more nuanced, he says, the problem of unequal justice is fundamentally the same as it was for Tom Robinson, whose fictional Depression-era trial was portrayed in “To Kill A Mockingbird.”
“Some things have not changed. We see it all the time. It begins with the investigation and the treatment of suspects. A black suspect is simply treated differently from a white suspect,” Grisham says. “Then they are tried in a system populated by white prosecutors and white judges and all-white juries. And that’s not much different from the trial 75 years ago of Tom Robinson.”
“Fortunately, with the use of DNA, we are beginning to recognize that there have been wrongful convictions. We’re finally taking a long look and trying to determine what is wrong.”

I’ve personally heard Grisham give a talk in which he emphatically talked about racial disparities in arrests and incarceration. The reality is that John Grisham has done far, far more to actually address racial bias in the criminal justice system than the self-righteous pundits mocking him have done or will likely ever do. But because he had the temerity to stick up for a friend — and a middle-aged white male friend at that — the rush is on to disregard all of Grisham’s prior work, exaggerate the indignation, and reduce the man to a caricature.

This dressing down of Grisham by Jessica Goldstein at ThinkProgress piece is pretty typical. There’s no mention of Grisham’s criminal justice activism. Just a lot of scolding, belittling, and berating. Worse, much of it is factually inaccurate. A few examples:

16-year-olds are minors. They are children.

Legally, when it comes to sex, that isn’t true in much of the country. In 11 states, the age of consent is 18. In nine others, the age of consent is 17. In the rest, it’s 16. Which means that in many states, it would have been perfectly legal for John Grisham’s friend to have had sex with the women he viewed online. The federal law (and several state laws that mirror it) making it a felony to photograph women under 18 was passed in 1984. The previous law had put the minimum age at 16. So in much of the country, it is perfectly legal for an adult man to have consensual sex with a 16-year-old woman, but it’s a federal felony if he records or photographs her the act, or her, in a sexually suggestive way. In fact, men have been prosecuted and imprisoned for recording sex with women under 18 but over 16, even though the sex itself was legal.

Now, you could make a good argument that these laws are necessary because a 16-year-old isn’t mentally mature enough to make an informed decision about sex, or about whether she wants to act in a pornographic movie. But that doesn’t appear to be why Congress raised the age. In his sentencing statement for a 2011 case out of Indiana, federal circuit court judge David Hamilton went back into the congressional record and found the following:

[T]he reason for the change was that prosecutors usually are not able to track down the women depicted in explicit photos to verify their ages. With the cutoff at 16, prosecutors were having problems winning convictions if the girls depicted in the images showed any signs of puberty. Raising the age to 18, a House committee reported, “would facilitate the prosecution of child pornography cases and raise the effective age of protection of children from these practices probably not to 18 years of age, but perhaps to 16.”

More from the ThinkProgress piece:

They are children if they are “dressed up to look 30 years old” (as determined by “she looks about 30 to me” expert John Grisham). They are children if their images are posted under a banner that labels them “wannabee hookers.” They are children whether or not you want them to be children. There is no legal difference between looking at pornography of a 16-year-old and looking at pornography of a 10-year-old.

That last sentence is true. And Grisham was specifically criticizing the law for precisely that reason. I happen to think he’s right. Here’s an example from the pre-Internet age that I think illustrates the point: In 1986, it was revealed that several movies featuring the popular porn actress Traci Lords were filmed while Lords was underage. The federal government proceeded to prosecute the people who made those movies for not verifying Lords’ age. That was probably appropriate. But should federal prosecutors also have pursued charges against everyone they could prove had at one time watched those movies, even if they did so believing that Lords was of age? Should those viewers have gone to prison for three or five or 20 years?

Looking at the photos causes harm. It’s not a victimless crime. Those men Grisham claims have “never harmed anybody” have, in fact, caused plenty of harm. The criminal activity does not start and end with the person or persons who photographed the victim. To download those images is to be complicit in their creation — it creates the demand that inspires the supply — and there is no loophole through which you can jump and land in a place where viewing child pornography is anything but a sex crime.

I don’t disagree that children depicted in child porn videos continue to experience harm as those videos are distributed. I’m also certain that viewing the ISIS beheadings causes trauma to the families of the victims. Yet I’m not ready to start putting people in prison who, for whatever reason, decided to watch those videos. I’m skeptical of the supply and demand argument, particularly when the suspect hasn’t bought or traded any porn. But even if it’s true that merely viewing child porn provides a market for more child porn, it’s also far from clear that harsh sentencing laws are the answer. We’ve been tossing people in prison for viewing child porn for decades now, yet both the United Nations and the Justice Department say that the online supply of child pornography is only growing.

This idea that Grisham’s “good buddy” is innocent because “he didn’t touch anything” demonstrates a fundamental misunderstanding of both the purpose of anti-pornography laws and the impact the distribution of child pornography has on its victims . . .  These laws are in place to punish offenders and deter would-be offenders before they do something abhorrent and disgusting. They exist to protect future potential victims so that they never become victims, so they can make it through life without being violated first by someone who would take advantage of them face-to-face and then over and over and over again by a million strangers and John Grisham’s good buddies from law school, clicking in the dark.

If the justification for giving people who view child pornography long prison terms is that some people who view child porn go on to do “abhorrent and disgusting” things to children, that isn’t much of a justification at all. First, pre-punishing people for crimes they have yet to commit is fundamentally unfair. Second, as Jacob Sullum wrote in a guest post here at The Watch earlier this year, there just isn’t much evidence to support the notion that consumption of child porn makes people go on to violate children.

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.”

In fact, as Sullum points out, some consumers of child porn are themselves victims of sexual abuse who view photos and videos as a form of therapy. That appears to have been the case with Ryan Loskarn, the congressional staffer who killed himself after he was arrested for possession child porn earlier this year. There’s also some evidence that legal access to virtual child porn (images produced without exploiting real-life children) may help prevent pedophiles from acting on their urges outside of cyberspace.

Back to the ThinkProgress piece:

“I have no sympathy for real pedophiles.” They are real pedophiles.

If we’re still talking about Grisham’s friend and those like him, they actually aren’t pedophiles. Words have definitions. They don’t mean whatever you want them to. Psychiatrists define pedophilia as “the fantasy or act of sexual activity with prepubescent children.” You and I may find it distasteful, perverted, or exploitative for a middle aged man to gawk at 16-year-old women. And you may think that 16-year-old women aren’t mentally capable of consenting to sex, or to participating in pornography. But it isn’t pedophilia. Sixteen-year-old women are not prepubescent children. Pedophilia is a psychological disorder. Its definition isn’t dependent on where a lawmaking body puts the legal age of consent.

Grisham’s concern for the 60-year-old men in this situation is just hilarious. Because that’s definitely the problem with our prisons: they are overrun with middle-aged white dudes, serving time for insignificant non-crimes. Not black men who were busted with marijuana, no siree.

As mentioned above, Grisham has long decried the racial injustice in our criminal justice system. That he for one portion of one interview talked about what he believes to be another, separate injustice doesn’t mean he doesn’t know or understand or appreciate the criminal justice system’s disproportionate effects on black people.

What about who these girls are? What about their “good buddies”? Is it not a “harsh sentence,” to know that images of you, of underage, naked you, are circulating the internet as you try to go about your life and there is nothing you can do, and there is no way to know if anyone you ever meet has seen them or not? Isn’t that significantly harsher than three years in prison? Isn’t that a life sentence, in a different kind of prison?

From Grisham’s story, it is far from clear that the women depicted in the videos his friend watched participated without their consent. What seems to be at issue is whether they were old enough to legally give consent. And as noted, if they were 16, in most states they would have been old enough to consent to sex, just not to being photographed. This is a far cry from sex slavery. Surely we can agree that though the law treats them similarly, recording a sex act involving a 16-year-old who consents to both the act and the recording isn’t in the same moral universe as perpetuating and recording a sexual violation of a five-year-old.

So no, it seems unlikely to me that if a woman knowingly and willing participated in a pornographic movie at the age of 16 or 17, simply knowing that the movie will always be out there is somehow a harsher “sentence” than hard time in a federal prison. This is especially true given that men who are labeled as child pornographers are especially subject to physical and sexual abuse.

If the recordings were of women who were forced into sex, that’s another matter.

More from ThinkProgress:

The way that Grisham just dehumanizes the actual victims here — well, they look 30 and besides they aren’t 10-year-olds and they aren’t boys! — is sickening. Like they don’t even matter. Like they aren’t too young to be legitimate pornography, because they aren’t too young for a 60-year-old man to find them sexy. Like a violation of them is not so violating because John Grisham decided it wasn’t. Now they are being violated all over again, a hat trick of violations: first by being photographed, then by having those photographs seen by who knows how many people, and then by having a high-profile person in a position of cultural power dismiss those first two violations as really not being so bad after all, relatively speaking.

We are now pretty far removed from what Grisham actually said, and more in the realm of Goldstein reading Grisham’s mind, or at least what she imagines his mind might be like. What I got from his comments is that he doesn’t believe that the sentence for viewing pornographic images of 16-year-old women on the Internet should be three or more years in federal prison. The ThinkProgress criticism above is akin to saying anyone who speaks out against mandatory minimums for drug dealers doesn’t give a damn about the children those drug dealers may have gotten hooked on heroin. (This isn’t the first time a progressive outlet has equated criticism of child pornography laws with defending child pornographers.)

But Grisham is hardly alone in this view. According to a 2010 survey by the U.S. Sentencing Commission, 71 percent of federal judges think the federal mandatory minimum for receipt of child pornography is too severe. Are seven in 10 federal judges perverts and pedophiles too? Should their homes also be raided by the FBI? Do they also have no regard for the victimization of children?

Here are a few other findings from the U.S. Sentencing Commission:

A variety of stakeholders in the federal criminal justice system, including the Department of Justice, the defense bar, and many in the federal judiciary, are critical of the current non-production penalty scheme. Although these stakeholders are not unanimous concerning the perceived flaws in the penalty scheme, many believe that it fails to adequately differentiate among offenders based on their culpability and sexual dangerousness, needs to be updated to reflect recent changes in typical offense conduct associated with the evolution of computer and Internet technologies, and is too severe for some offenders.

This is exactly in line with what Grisham was arguing. Not all “child pornography” is the same. There are different levels of culpability between manufacturing, selling, and consuming, and there are different levels of culpability based on what’s actually depicted in the images. Are the members of the Justice Department and the defense bar also just a bunch of dirty old men? Is the U.S. Sentencing Commission?

Today, nine in 10 federal child porn prosecutions are of people never charged with the initial exploitation, only of making or trading the images. The average sentence is more than 90 months in prison. As Sullum pointed out, “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.” And as noted, none of this appears to have stemmed the production of exploitative child pornography.

You needn’t be a perverted old white guy to see something wrong with that.

Grisham has since retracted and apologized for his remarks. That’s too bad, although when people are basically accusing him of defending child rapists, it’s certainly understandable. As I wrote above, I think his comments were intemperately worded. But this wasn’t a written essay or a prepared speech. They were off-the-cuff remarks to a reporter. If someone who has done as much as Grisham has for criminal justice reform can be torn down for this, there isn’t much incentive for anyone to speak openly and honestly about difficult issues anymore. The last 24 hours of this online feeding frenzy will not only make other influential people think twice before speaking out against unjust laws, it also makes it a lot more difficult to candidly discuss the fairness and efficacy of the laws we have now.

UPDATE: After this post was published, the Telegraph published another story about this whole affair. Citing media accounts of the prosecution of Grisham’s friend, the Telegraph reports that he was convicted of swapping photos of children, some younger than 12. That’s certainly a different story than what Grisham initially told the reporter. I don’t know why Grisham told an incorrect version of the story, and I suppose if you wanted to speculate, you could come up with a range of explanations from nefarious (Grisham deliberately lied to defend child pornographers) to more understandable (Grisham’s memory of the event, which happened in the 1990s, was distorted by his sympathy for his friend). In any case, while I suppose this will only make Grisham less sympathetic in the eyes of his critics, I’m inclined to look over what were offhand remarks to a reporter in the service of a broader point. If Grisham had cited the case in a prepared speech or a published article and similarly misstated the facts, that would be quite a bit different. We’ve all said things in unguarded moments that we wish we could take back.

I should also point out that there doesn’t seem to be much evidence to back Grisham’s claim that the prisons are filled with men who must happened to mis-click on a website. As I note above, it is true that 90 percent of federal child porn prosecutions are of people who played no part in creating or selling any images or videos. But while there are a few horror stories about inadvertent clicks and people victimized by malware, it’s far from the bulk of child porn cases. Most involve people who were actively seeking out images and videos.

But none of this changes the fact that the a good chunk of the federal criminal justice system, including the Department of Justice and 70 percent of federal judges, believe that the federal sentences for receipt of child pornography are far too harsh. None of it changes the fact that the laws aren’t doing much good. You needn’t sympathize with criminals to recognize and oppose laws that are unnecessarily harsh and counterproductive.

One more thing: I question the news value of this update from the Telegraph. That is, I’m not sure why it was necessary for the paper to go back and dig into the old case involving Grisham’s friend. Grisham isn’t an elected official, nor is he running for office. As the article points out, Grisham’s friend has served his time, was released from prison, cleaned up his alcohol and gambling problems, and has put his life back together. The Mississippi Bar even reinstated his license finding that he had rehabilitated. Now, because his famous friend mentioned him offhand in an interview, the guy’s case gets a new round of attention, and international attention at that. (Again, I know it’s difficult to sympathize with someone who was convicted of trading child porn. But either we want these people to be rehabilitated and reintegrated into society, or we don’t. If we don’t, we might as well just mandate life in prison for the first offense.)

It’s true that Grisham was advocating a public policy position. And there’s nothing wrong with checking into his claims. But his argument didn’t rest on what happened in that specific case. The veracity of Grisham’s claims about the nature of most child porn prosecutions (which he got wrong) and the severity of the sentences (which he got right) could easily have been checked by looking at data from the U.S. Sentencing Commission.