Last Friday's NY Times reports that Judge Jack B. Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed "no risk to society."
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 over the last decade.
Last week, the United States Court of Appeals for the Second Circuit vacated a 20-year child pornography sentence by ruling that the sentencing guidelines for such cases, "unless applied with great care, can lead to unreasonable sentences." The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.
Judge Weinstein has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography.
"I don't approve of child pornography, obviously," he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.
"We're destroying lives unnecessarily," he said. "At the most, they should be receiving treatment and supervision."
On the other hand, child advocates like Ernie Allen, the president of the National Center for Missing and Exploited Children, are upset by such thinking. "Real children are harmed in the production of these images," he said, "and these same children are harmed every time these images are downloaded and viewed."
So the salient question is whether Judge Weinstein is right? Should someone in possession of child pornography receive as Weinstein, suggest, "supervision" at most or should he go to prison for a minimum of 5 years?
Does a harsh sentence deter people from committing this crime? Does a mandatory 5-year sentence protect children? This is an extremely serious issue.
The child porn business is estimated to be in the billions annually in this country alone and still growing. That is a pretty creepy thing to think about. People, mostly men, obsessively downloading these abusive images. Then these cases come before the court and many of these men, one gets the feeling, need psychological help, not punishment.
Moreover, harsh punishments are seductive. They may seem to stem from society's need to protect children and this is of course, commendable. And yet overly severe punishment may mask the fears, guilt and other deep feelings of society. If we stone the child pornographers and sexual criminals it may be a way to launder guilt about our own "sins." It may also be an attempt to quiet our fears and revulsions. We are bad, but we are not like those disgusting people. Obviously, most criminals (and psychoses) have to be forcibly kept away for the protection of society. Who would think of letting pedophiles or other criminals such as the accused Pakistani bomber Faisal Shahzad free? It may be the only way to deal with them. And yet this country with rivers of porn flowing through every computer terminal must have deep guilt about porn and sexual appetities in general and all kinds of crime. Might some of this urge to severely punish have less than honorable motives?
The point is debatable. Perhaps, we as a society are better off with severe laws, whatever the motives, if it can be proven that they protect children. I am not entirely sure.
What do you think?