Making Punishments Fit the Most Offensive Crime: Societal Revulsion at Child-Pornography Consumers Has Led to Stiff Prison Sentences -- and Caused Some Judges to Rebel

By AMIR EFRATI

October 23, 2008

Are people who download and view child pornography -- but aren't themselves molesters -- as much of a threat to society as rapists or murderers?

The question, being raised by federal judges in response to tough sentences meted out to consumers of child pornography, goes to society's view of repugnant behavior and the legislative response to it.

The average federal prison sentence for individuals who possess, receive or share child pornography jumped to roughly seven years in fiscal 2006 from about three years in 1994, according to Justice Department data. In federal cases, the mandatory minimum for downloading images is five years in prison without parole. Defendants who download particularly lewd images, possess a large number of images or share some of them with others often get sentences of 15 or even 20 years.

In Arizona, the minimum mandatory sentence for one count of possessing child pornography is 10 years. Several years ago, a former teacher with no prior criminal record who was convicted on 20 counts of possession was sentenced to 200 years in prison.

These acts alone are disgusting to most people. But not everyone buys into the idea that they warrant two decades or more in prison. Federal judges around the country are speaking out against what they view as harsh mandatory and recommended sentences, spurred by Congress in recent years.

The sentencing guidelines for child pornography crimes "do not appear to be based on any sort of [science] and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses," wrote Robert W. Pratt, a U.S. district judge in Des Moines, Iowa, in a case earlier this year. In that case, he gave a seven-year sentence to one defendant, even though the advisory guidelines called for a minimum of roughly 18 years.

Some judges and other critics of the sentences say they stem from lawmakers' exaggerated reactions to societal alarm over very real problems. The crack-cocaine epidemic of the mid-1980s led Congress to pass much tougher sentencing laws for possession of crack, dwarfing the sentences for possession of the cocaine powder from which crack is derived, says Douglas Berman, a law professor at Ohio State University who writes an influential sentencing blog.

Last year the Supreme Court said it was permissible for federal judges, who had complained for years about the disparity in sentences for the two types of cocaine, to give "reasonably" shorter prison terms for crack.

Similarly, the critics argue, concern over sex offenders is being stoked by television shows like "To Catch a Predator," which followed authorities as they captured individuals attempting to have sex with undercover agents posing as minors, whom they met online.

In possession cases where there is no evidence that defendants sought to abuse minors, several judges are giving much lower sentences than the guidelines intend, which they are allowed to do if they believe the recommended punishment doesn't fit the crime. They cannot go below a mandatory minimum.

In sentencing a defendant in July to five years in prison rather than the minimum recommended sentence of eight years, William Griesback, a federal judge in Green Bay, Wis., wrote: "The fact that a person was stimulated by digital depictions of child pornography does not mean that he has or will in the future seek to assault a child."

Some judges are making even more noise. In April, Jack Weinstein, a federal judge in Brooklyn, N.Y., threw out a conviction in a highly unusual manner. He made the argument that he himself had infringed on the defendant's constitutional rights by not informing the jury of the "harsh" five-year mandatory minimum sentence for receiving child pornography.

It is unclear whether most viewers of child pornography are likely to commit acts of physical abuse, some psychologists who treat sexual deviants say. Fred Berlin, founder of the Johns Hopkins Sexual Disorders Clinic, says many of his patients have a "voyeuristic" interest in child pornography. "Absent any evidence that they have done something other than view child porn, I'm not prepared to conclude they are at a heightened risk of physically abusing a child," he says.

But Ernie Allen, who heads the National Center for Missing and Exploited Children, argues the sentences are simply "catching up to reality." Hundreds of thousands of Americans currently possess illegal images and may be tempted to generate child pornography themselves -- by molesting children and taping the acts -- to gain acceptance in Internet groups whose members share images, he says.

The Justice Department, which launched an initiative in 2006, argues that this heightened acceptance is leading to "an escalation in the severity of the abuse depicted" and has made child pornography prosecutions a priority. Many such prosecutions in the U.S. now occur in federal court.

In fiscal 2008, U.S. attorneys' offices brought 2,211 computer-based child exploitation cases, the vast majority against child pornography viewers, who mostly pleaded guilty. That was more than double the number five years earlier.

Drew Oosterbaan, chief of the Justice Department's child exploitation and obscenity section, says that even if they haven't committed child abuse, some individuals who view child pornography undoubtedly "pose a threat against children." Mr. Oosterbaan says the Internet has led to an explosion of new child pornography images and cites studies showing that viewing them may empower people to act on their sexual interest in children. There is no consensus on how many of the viewers will pursue physical abuse, Mr. Oosterbaan says, but "if your daughter's camp counselor is using child porn, common sense dictates there is a threat to your daughter."

This perspective, of a potential for danger, troubles Troy Stabenow, a public defender in Jefferson City, Mo., whose critique of child pornography sentences has been cited by judges. "You shouldn't punish someone for something they haven't done -- it's not American," he says.

He compares the long child pornography sentences with those given to online predators who drive hundreds of miles to engage in sex with minors they met in online chat groups. The mandatory minimum federal sentence for those offenders is 10 years, while receiving child porn carries a five-year mandatory sentence.But under the guidelines set by the U.S. Sentencing Commission -- a federal agency tasked with turning legislation into rules that guide judges on sentencing -- child pornography viewers often accumulate penalties, known as "enhancements," that magnify recommended sentences for individuals who use a computer, have a large number of images or possess images of prepubescent children, among other things. As a result, the recommended sentences for viewers can easily be higher than those for predators.

In 1990, Congress criminalized the possession of child pornography, and later passed legislation to significantly increase penalties for these offenses. In 1991, a person with no criminal history who possessed violent child pornography images and movies and shared them with others would face a maximum of two years in prison in federal cases. Today, that same person could face more than 20 years, Mr. Stabenow notes.

"Imprisonment of at least five years for this defendant is cruel," wrote Judge Weinstein, the Brooklyn judge who argued he had infringed on the defendant's rights himself, in his April opinion. "Few jurors or others would send a psychologically stunted man who: had suffered vicious sexual abuse as a child ... had established a home and family with a loving wife and children ... to prison for five years because he repaired to a locked room in his garage to watch child pornography received on his computer."

The Justice Department is appealing the judge's decision.

Write to Amir Efrati at amir.efrati@wsj.com