Midlands Voices: Child-porn cases are not all alike

6-30-2010 Nebraska:

The writer, of Omaha, is a lawyer.

Foreign travelers are occasionally bemused after observing our society so obsessed with sex. That goes for pornography, too. If you have cable television, you can dial up soft-core porn any night of the week. For hard-core porn on cable via pay-per-view, you can dial that up readily, too, any time of the day or night.

Everyone knows the joke about the hapless fellow who sits alone in his basement at night in his underwear dialing up dirty pictures on the Internet.

What most people don’t realize is that you can go to federal prison, for a minimum of five years, if you’re looking at the wrong type of dirty pictures on the Internet.

Let’s call this person “Arthur.” He’s a 55-year-old white male. He’s in a long-term marriage. He has a good job. His kids are grown and gone.

In recent years, Arthur has developed a bad habit. After his wife goes to bed, he goes down to the basement, sits in front of his computer and dials up dirty pictures on the Internet. Arthur has developed a fetish for viewing pictures of naked children.

Now, nobody defends this. Arthur’s images come from out of state. He doesn’t distribute them, sell them, share them on any file-sharing program or display them to any other person. He tells nobody. It’s his secret. He realizes that he should seek professional help but doesn’t.

Arthur is probably not aware that he has violated a federal law prohibiting the reception of child pornography. If a zealous FBI agent (who may be surfing the Internet for real sexual predators) discovers Arthur’s habit, and he is indicted in federal court, he faces a mandatory minimum of five years in federal prison (with no parole).

This kind of situation has sparked controversy. Not because anyone defends the principle of watching child porn, but because many people, including federal judges, believe people like Arthur don’t deserve to spend five or more years in jail. In other words, people like Arthur need treatment, not imprisonment.

Recently, Judge Jack B. Weinstein of Brooklyn, one of the nation’s most distinguished and longest-serving federal trial judges, was profiled in the New York Times. Judge Weinstein is grappling with this very issue.

The case before Judge Weinstein involved Pietro Polizzi, a married father of five, who kept a collection of 5,000 graphic pictures in his garage. In federal court, Mr. Polizzi, if convicted, faced a minimum of five years in federal prison.

Judge Weinstein stated: “I don’t approve of child pornography, obviously.” But he added that those who merely view the images but do not purchase or sell them present, in his view, no threat to children. Said the judge: “We’re destroying lives unnecessarily. At the most, they should be receiving treatment and supervision.”

The article itself noted:

There is little public sympathy for collectors of child pornography. Yet across the country, an increasing number of federal judges have come to their defense, criticizing changes to sentencing laws that have effectively quadrupled their average prison term in the past decade.

A recent federal appeals court observed that federal sentencing guidelines “actually punish some forms of direct sexual contact with minors more leniently than possession or distribution of child pornography.”

Child protection advocates would argue that those like Arthur or Polizzi who merely view these images nevertheless fuel the child pornography industry. That view is worthy of due consideration.

Polizzi went to trial and was convicted. Then Judge Weinstein did a very unusual thing. He asked the 12 jurors if their verdict would have been different if they had known before the verdict that the punishment was a minimum of five years in jail. (Federal jurors are not told about possible penalties.) Five jurors “spoke up against imprisonment. Two said they would have changed their votes.”

The Polizzi case remains ongoing.

It is unclear whether “sexting” (teens passing around sexy pictures of themselves on cell phones) will eventually be prosecuted under this federal statute.

Whether Arthur is a criminal or not, we can and should, as thoughtful citizens, make the distinction between someone who belongs in a federal prison and someone who belongs in a psychiatrist’s office. ..Source.. Mike Nelsen