Update #26 Feb. 2015
CUYAHOGA!!!! Welcome to Kevin's Update Letter #26. Coming to you from Elkton-FSL, a low/minimum security federal prison, this letter hopes to keep you abreast of things going on in my life and issues that I think about. I'm getting into the "homestretch" of my 72-month sentence for possessing and sharing child pornography. Related to that issue, this letter has a lengthy piece called ADRIFT that I hope you'll take the time to read. Others have promised me that it's worth reading and understanding. Don't be scared off by the length or narrow subject matter.
Well, there's a lot to this letter after the update portion, so I'll quickly move through this. How bad is your winter? Ours is terrible. Lots of cold, lots of snow, and very little sunlight. It's very much like last year. My mood ("winter blahs") is in awful shape. Thank God for coffee and vitamins, or I'd never make it.
I've learned about my half-way house. I was offered 6 months of halfway house to be spent at the Lake County Sheriff's facility in Waukegan, IL. I had thought that I'd be going to the Salvation Army facility on Chicago's Near West Side but that didn't happen. I guess the Salvation Army halfway house is too close to schools and day care centers. So I think I'll be going to Waukegan. I was offered 6 months of halfway house beginning on Dec. 23rd of this year. So that will be the date that I leave Elkton - quickly. Regardless, I'll be in some sort of federal custody (halfway house/home confinement) until late June of 2016. I'll let you all know more about the halfway house policies once I know them. It's still about 10 months away.
My friend Bill in Oak Park wrote and suggested that folks might like to read about how I've changed since I've been in prison, had some time to reflect on my crime, and been in some structured rehab and therapy programs. That's a really good idea, and I think I'll make that the thrust of the next letter.
To fight the winter blahs, I continue to participate in spin (I'm the instructor). Most of these guys will transition to an interval training program that I'll lead in the summer. I had mentioned that I was playing chess, but I haven't had much time to do it. I haven't had any visits since Thanksgiving, but I know the winter season is full of holidays, and travel here is treacherous. No worries. We'll catch up later. Speaking of catching up and being in touch, thanks to all of the folks that sent me personal letters. And what about all the Christmas cards? I think I received over 30 cards! I forwarded many of them to my friend Bruce to enjoy and see who was writing. Not to be outdone, my birthday rolled around, and I received about 10 cards. Thanks to everyone so much! They were awesome. My birthday (47) was on Super Bowl Sunday, so I like to think that all of America got together that night and celebrated my birthday by eating chicken wings, pizza, and watching football. You're welcome. On a completely random note, at Christmas, we had a man receive clemency. He had already served 12 years and had 6 more to serve. Obama gave his family a great Christmas gift - its husband and father.
I'm now tutoring GED 3 times per day. I do one-on-one tutoring at noon-2 and at 6:30-8 pm. I tutor two other guys at 5:30-6:30. Three of my students will be testing for the GED in early March, and I expect several of them to pass.
I'm putting together resumes and cover letters and beginning to get addresses for places in Chicago that I might want to work. I'm in conversations about one job opportunity that I don't want to get into just yet, but suffice to say that it's really interesting and could blossom into a great opportunity.
I mentioned in my last letter that there were some fights in the unit. Well, we're still not getting outside very much, but tempers have cooled, and we haven't had any fights lately. We lose guys to the Hole over contraband (tobacco, drugs, stolen food), but that's about it. We expect to lose a lot of guys to the drug sentencing reform.
Duke basketball gives me some things to watch on TV though we don't get a lot of it here. There are several Kentucky basketball fans that I razz over college basketball. My MLB team, the Chicago White Sox, have made some great moves, and they might do well next summer and give me a reason to try and tune in. Other TV I watch: Sunday morning political shows and The Americans, a show about Reagan-era KGB/CIA/FBI surveillance. It's good, not great.
In my last letter, I listed 30 food items that I wanted to eat when I left here and whose version I wanted (though I'm not even that picky). Lots of folks wrote with their suggestions, and my brief answer is "YES!!!" But, I forgot these 3: 1) good onion rings 2) scallops 3) wild mushroom risotto.
Things in the places I have called "home" are okay. About the worst news to report are surgeries at the knees and below. Seems like everyone's getting knee replacements, stents, and procedures done on their calves and feet. I hear that younger cousins, nieces and nephews continue to excel in the classroom and in sports, and I try and cheer them on from here. My friend Bruce visited Scotland to see his granddaughters in an Irish dance competition.
I have some prison and sentencing reform info to share that I'll save for the next letter.
Peace and Best,
How did we get here? Where do we go now?
In an interview several months ago, author John Grisham noted the harsh prison sentences that viewers of child pornography (CP) offenders receive. After a firestorm of pushback, he released a brief, milquetoast, scripted retraction that suggested that CP offenders should be prosecuted to the "fullest extend of the law." That exchange served as an impetus for me to write what follows. I'd actually been considering writing it for a while, and this seemed like a good time.
Grisham, his critics, the public-at-large, my fellow inmates, and I almost all universally agree that CP should be illegal. I'm not going to be an apologist for CP offenders (including myself), CP, or its few supporters. What I DO WANT to offer is a discussion of how we arrived at a place where low-level, non-contact, federal CP offenders routinely serve 10 to 20 years in federal prison without chance for parole. In a special "The Gang's All Here," I'll introduce you to about a dozen otherwise harmless, first-time offenders who are all serving 10 years or more in prison. Importantly, I'll discuss the perverse, dangerous incentives that long CP sentences create and the opportunity costs we as a society pay for them. Finally, I will close with a few suggestions. This is not the long academic or legal treatment that this topic deserves and that many writers have already helped create. A bibliography at the close provides source references and additional resources.
Until the mid 1970's, CP was available and legal in the U.S. behind the back counters of adult book stores. To the degree that porn was generally unavailable everywhere, CP was even more unavailable. Still, there was a small, conventional, for-profit market that operated. That situation basically ended when the Supreme Court of the United States ruled (correctly in my opinion) that it would not entertain the notion of a 1st Amendment right to possess these materials. It opined that since criminal exploitation of children was central to its production, CP materials must be illegal and unavailable. The ruling in the U.S. ushered in an area where most Western nations followed suit. The last developed countries that allowed CP (Denmark, Japan, and the Czech Republic) changed their laws and now distribution, possession, and production of CP is illegal in all developed countries and in all 50 states. For all intents and purposes, the child porn in the magazines of the '70's disappeared.
Then along came the Internet (and I would argue almost as importantly, the easy-to-use, cheap, digital camera). In response to an emerging and an anticipated surge of even more CP on the global Internet, the US federal government in the 1987 and 1991 enacted federal CP laws to catch "mass producers, mass distributors, and repeat offenders." As an example of the legislative intent of these early laws, one of the few sentencing enhancement at the time addressed sale of goods in exchange of $100,000. In short, these new laws would allow the feds to go after "big fish" while state law would continue to focus on minor players.
In 1991, federal law was amended to include possession (beginning an unfortunate trend away from distribution and production), set a 17-month maximum on offenders, and still offered probation as a viable option to judges. After all, only 15 years before, this material was legal (though broadly offensive), and its consumers were considered simply "dirty old men" and "perverts" and not criminals.
However, the 1991 amendment would be followed by additional changes to the laws over the next 20 years with little discussion and nearly unanimous support. The "child sex crimes panic" had begun, and these new laws increased penalties to the point that an average first-time offender now routinely faces nearly a statutory maximum 20-year sentence. Plea bargains often reduce these penalties but often not below 10 years or below the 5-year mandatory minimum sentences that accompany receipt and distribution charges. [A fantastic review of the upward trajectory of these laws was written by U.S. Federal Public Defender Troy Stabenow, "Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines"]
The 1987 and 1991 laws weren't in place long before Congress changed them. And then changed them again. And again. And again. Every time the changes were made, they increased the severity of penalties and the types of illegal behavior and materials included (the laws were expanded to forbid cartoons, sculpture, photo-shopped images, and writing [the inclusion of pornographic writing was later ruled unconstitutional]). The amendments raised the ceiling on punishment while lowering the floor of who was included. The feds cast a wider net and made the holes in the net even smaller. Essentially, they went from fishing for the big fish who proved difficult to catch to trawling for minnows who also happened to be the easiest to catch and prosecute.
The results have been staggering. As Charles Patrick Ewing notes in his book Perverted Justice . Stabenow has shown that the average CP sentence in 1997 was 20.59 months. The average sentence in 2007 had risen to 91.3 months. That's an average sentence increase of 443% over 10 years. Of course, this average defendant is likely situated even further down the scale of culpability from the 1997 average defendant. Likewise, the 1997 average defendant received more time than the 1991 offender. Men who have likely done less than ever are serving more prison time than ever before.
FANNING THE FLAMES
Of course, federal lawmakers can amend laws to increase punishment for CP offenders and suffer little to no political pushback. CP offenders have no obvious political allies or social support. Until very recently, the federal BOP existed in a no man's land of reform and was an afterthought in a multi-trillion dollar federal budget. Still, the CP laws weren't passed or amended in a political vacuum. Folks that stood to profit from these laws and the popular conception of a vast and growing for-profit, Internet CP market (and online "predators" generally) were glad to fan the flames. However, as I show here, the breathless rhetoric and unbelievable statistics were, well, ...unbelievable and, as it turns out, unreliable. Still, they made their way into the public discourse where they were barely challenged at the time. They goaded Congress to act on an embellished global, Internet CP market. Let's examine a few of the chestnuts that made the rounds throughout the early 2000s :
CLAIM - Between 2000 and 2005, a variety of federal organizations in Canada, the U.S., and Australia publicly estimated there were 100,000 commercial CP websites on the Internet.
FACT - U.S. Customs officials in 2008 estimated the number of sites to be between 200 and 1,700 [That's still 200-1,700 too many but far less than the earlier figure.]
CLAIM - More than 20,000 images of CP are posted on the Internet every week. Between 2003 and 2008, a variety of UK, U.S., and Australian officials (including at least two U.S. Attorneys) issued statements reporting this number.
FACT - A COPINE research project found that there were "140917 child image files" posted to USENET groups (early Internet) over a six week period. The word "pornography" was added to the statistic, and the number was divided by six. Voila', a false statistic is born. Then repeated. Then repeated.
CLAIM - Between 2003 and 2007, the statement was often repeated that "CP is one of the fastest growing online businesses generating approximately $3 billion (U.S.)."
FACT - The number was generated by Utah-based Jerry Ropelato who posted it on his website lnternetFilterReview.com. There seems to be no factual basis to the number.
CLAIM - Between 2004-08, various international organization touted the idea that "CP is a $20 billion industry worldwide."
FACT - Although this statistic made it all the way to Washington, it thankfully does stretch credulity. $20 billion annually? Really? In a paper on CP sentencing reform , attorney Stabenow gives a bit of a wink to this statistic when he points out that $20 billion is twice the annual gross of the U.S. and Canadian film industries combined. $20 billion is $3 for every man, woman, and child on the planet! [and, of course, most CP is rarely bought or sold, but I'll come back to that later.]
Hopefully, you basically get the point. Other false/unsubstantiated claims promulgated by the stand-to-gain organizations include:
* "It's estimated that 20% of all Internet porn involves children"
* "40% of arrested CP possessors sexually abused children."
* "50,000 predators are prowling for children online at any given time."
CHANGING THE NARRATIVE OF THE OFFENDER: RECASTING THE ROLE
The 1990s and 2000s ushered in the Internet and introduced a new type of cultural confusion. The growth of online adult pornography, shows like To Catch a Predator, false/confused/conflated sex crime statistics, and authentic online predators made it difficult to define the new Internet CP offender. Was he the relatively harmless CP purveyor of the 1970s but now with a computer and mouse? Was he someone with more sinister motives who had avoided detection, a wolf in sheep's clothing? Was he a new type of offender altogether?
Some people found it a valid question to ask and leapt at the opportunity. Two of the first to ask the question were Michael L. Bourke and Andres E. Hernandez, two employees affiliated with the BOP's Butner, NC facility. They published their results in "The Butner Study Redux: A Report on the Incidence of the Hands-On Child Victimization by Child Pornography Offenders" . It was one of the first and most influential reports on the issue to circulate in federal courts. While its results were at odds with most other subsequent studies, it gave Congressmen ammunition (and cover with critics) to justify the extremely long sentences now being meted out to CP defendants.
However, as Andrew Wolfsen of the Louisville Courier Journal noted in his 2012 article "Do Viewers of Child Porn Also Molest?" , the Butner authors seemed to have it all wrong. Wolfson's article asks and then reports: "Are men who download child pornography likely to also molest children? An often-cited 2008 study conducted at a federal prison hospital seemed to prove that was the case. Researchers from 2002 to 2005 asked 155 CP offenders at the Federal Medical Center in Butner, NC if they had ever illegal sexual contact with a child. When they started treatment, only 26 percent of the men acknowledged they had, but by the end of the treatment, the number rose to 85 percent. However, the study was withdrawn a year after being published by the U.S. Bureau of Prisons, and co-author Hernandez, former director of Butner's sex-offender treatment program, says "some individuals have misused the results." The problem with the study was that unless offenders continued to admit further sexual crimes, they were discharged from the program. And other researchers have drawn the opposite conclusion of the Butner study. A 2005 study in Canada that followed 201 CP offenders, for example, found that only one with possession only offenses molested a child over the next 2.5 years. The researcher, Michael Seto, recently testified before the U.S. Sentencing Commission that offenders who download child porn appear to have a "very low risk of sexual recidivism." Another study published in 2009 that followed 200 individuals suspected of viewing CP online found fewer than 1 percent were investigated for child sexual abuse in a six-year follow-up period."
Of course, Wolfson's work only scrapes the surface here. Richard Wollert, a psychologist at Washington State University-Vancouver reported that a group of men from Butner wrote to collectively assert that coercion existed in the program and that the reports of child sexual abuse functioned to meet the demand of the interviewers .
Still, the emerging language of the times seemed to suggest that CP offenders had become conflated with those committing worse crimes. The nature of and motive for the crime seemed beside the point. CP offenders were reflexively referred to as "pedophiles" (even without diagnosis) and "predators." The crime of viewing CP became defined as "sex abuse" when it was simply looking at pictures. That's unfortunate because, in spite of the Butner Study and the emerging language of the time, CP offenders and their offenses aren't the same as hands-on sex crimes.
Indeed growing evidence appears to suggest that CP offenders who have no other history of contact offenses might represent a distinct class of offender at the level of (1) demographic (2) motive (3) rehabilitation potential and (4) risk for re-offense and sexual recidivism. When we create a demographic profile of CP offenders versus contact sex offenders some notable things stand out. A variety of studies have all found essentially the same patterns. Compared to contact sex offenders with whom they are often lumped, CP offenders are more likely to be Caucasian, better educated, almost exclusively male, and less likely to have any prior arrests or a prior arrest for a sex offense. My personal experience at Elkton leads me to believe that not only are those things true but that CP offenders are generally socially passive, extremely unthreatening and non-aggressive, sufferers of a form of regressive sexual expression, and exhibitors of a learned and maladaptive coping mechanism. For these men, CP collecting represented a smaller slice of an otherwise broader interest/obsession with pornography that many times served as their only sexual outlets.
And Charles Patrick Ewing notes in his book that many CP offenders (beyond knowledge that it's illegal) fail to see how their behavior is wrong, at least in any direct way. Ewing notes the following judicial opinion from US v. Ontiveros by U.S. District Judge William C. Griesbach:
"A further factor seems to be the lack of appreciation of the harm that simply viewing such material does to children. In some respects, the Internet seems analogous to a huge file cabinet containing an almost limitless number of documents and other forms of information. Under this view, accessing child porn can be rationalized as simply pulling out a drawer and simply looking at the photos that someone else took in the past. As long as the individual who accesses the pornography is not himself abusing children to produce it, selling it in order to make a profit from it, or paying for it so as to stimulate demand for it, he can tell himself that he has done no harm to the children depicted. This line of reasoning, of course, is directly contrary to Congress' finding...that "[e]very instance of viewing images of child pornography represent a renewed violation of the victims and repetition of their abuse." And it also ignores the fact that further demand is fueled by those who seek it out and share it with others. But these harms are indirect and abstract, and thus often unappreciated or easily ignored. This is apparently why people who express shock at the idea that they would ever intentionally harm a child can engage in such behavior."
So, there seems to be a group of somewhat socially isolated, reasonably intelligent men who are largely unaware of the harms of CP beyond the indirect harms of "revictimization" (an abstract concept) and creating demand (a more straightforward idea). Okay they know it's illegal. Agreed. So why do they (we) "go there?" Why take the chance on arrest? The first idea is drawn from my experience and a 2014 article by Jacob Sullum in Reason Magazine ("Our Misguided Child Porn Laws Do Little to Protect Children") . The article starts thusly: "In a 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 porn. Loskarn, former chief-of-staff of 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. 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 the 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 they're going to go out and commit torture and murder."
Sullum continues, "Dean Boland, an Ohio defense attorney who specializes in child porn 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 porn, "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 the 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 8 years in prison (the average sentence for non-production child porn offenders.)"
Two thoughts: First, the article is worth reading in its entirety and, second, Loskarn could have taken those same thoughts from my Presentencing Investigation and therapist's notes since they so closely match my own. Elkton-FSL is over-run by men who suffered repeated child sexual abuse, and Loskarn's words are a variation on a recurrent theme here.
Personal child sexual abuse helps explain how some men came to CP and Elkton-FSL but not all of them. A non-scientific sampling from almost four years here at Elkton-FSL tells me that some men arrived at CP from a slippery slope of porn addiction. Over time, other forms of pornography simply failed to satisfy them. Some were lured by the illegal nature of CP, fulfilling the aphorism that "every boundary invites its own transgression" (and discussed in the work of NYU law professor Amy Adler .) Some men simply lacked empathy. Fantasy and role-playing ("Anything can be real.") occupy a larger-than-healthy place in the lives of many men here who often appear to suffer stunted emotional development. Others have impulse control issues. Some have empathy disorders associated with their Autism-spectrum disorders. Of course, some men here (for whatever reason) simply prefer sexual themes with young people. In my opinion, this minority probably represents the biggest threat to recidivate. Throw those ideas on top of various combinations of entitlement and compartmentalization issues, thinking distortions, and social isolation, and society gets men who exercise very poor judgment, look at CP, and end up in prison.
"THE GANG'S ALL HERE"
In order to understand how adrift we are, I want to introduce you to some of the men that I see every day. Each one of these men received a 10-year or more sentence for a non-contact, non-production CP offense. We eat together and recreate together. Laugh and, sometimes, scream together, and, honestly, I cannot tell you how frustrating it is to see these men here for as long as they'll be here. Warehousing them is a waste of your tax money and a waste of their time. Some are friends, some are not. None of them are perfect. None of them are dangerous; I doubt they ever have been and most certainly are never going to be. I could have put two or three times as many profiles here, but I chose to stop at an even half-dozen. I'll save some for future update letters. NOTE - The names of the men have been changed.
B - B's in my unit. He was active duty military when he was arrested with CP files on his laptop. He did multiple Army tours in Iraq and Afghanistan, so in a way, this isn't the way that we should treat our war heroes. B's a bit of an adrenaline junkie. He also has some anger and impulse control issues. Still, since he's from New England, he's usually just pulling for the Carolina Hurricanes (NHL), Boston Celtics, Patriots, or UCONN (basketball). His anger issues go back to his childhood. B's mom had to raise him by herself and was a bit overwhelmed. B didn't have the discipline of a father in his life. See, B's dad was killed by a drunk driver when B was a little kid. The man who was DUI when he hit and killed B's dad served a weekend in the "drunk tank". No jail time for vehicular homicide. B was sentenced to 13 years for having CP.
Lyle - Lyle is a biracial Asian-American who was a college student doing student teaching and on the cusp of finishing his degree when he was arrested for CP. The arrest temporarily derailed his plans to be a college graduate. He began his stay at Elkton "up the hill" at the FCI and has been at the FSL for a few years now. Lyie completed the Kent State Entrepreneurship program when he was at the FCI and is now finishing his college degree through Ohio University. Lyle catches some razzing for his athletic "skills", but he sure does try hard. He tries hard in about everything he does, and that's why he'll ultimately be a success. Too bad that he has had to postpone so much of it. He's a really decent, smart guy who didn't deserve a fraction of the 12 year prison sentence that he received.
Jake - Jake was in my pre-trial counseling group in Chicago. He has a background in music and nursing. He was charged with distribution of CP using P2P file sharing. He spent about 3 years in pre-trial home confinement where he wore an ankle bracelet (no credit for those three years...) and successfully finished the counseling program. At sentencing, his judge thought that Jake shouldn't have to serve the overly harsh term in prison that he was facing and that Jake would go on to do good things in his life. Still, the judge thought that the public was unaware of these overly harsh sentences like Jake was facing. So, in order to make the public aware of these overly harsh sentence and deter them from CP, he imposed an overly harsh sentence of 10 years on Jake [That's NOT how to combat and reverse overly harsh sentences...]. Still, 10 years was less than the nearly 20 year sentence the sentencing guidelines recommended for this non-violent, first-time offender. Jake appealed the sentence. Jake lost. In the 2 years Jake has been here, he's become involved in softball refereeing, bocce, and a religious singing group that performed at Christmas. He's also been away from his family. While he's been here, his father has died from a massive heart attack and his grandmother has died of natural causes.
Bill - Hailing from Anaheim, CA, this clean-cut, dapper, 60-something offender is not quite halfway through his 15 year sentence. He has family in CA and a sister in FL. Being in Ohio, he gets NO visits. His interest range from geography to history. He reads my newspaper when I'm finished with it. Way, way, way over sentenced.
Danny - Danny is a young guy who's full of energy and a good time. He involved in all sorts of sports (great outfielder), and he's a big pop culture maven. He likes books, TV, dancing, movies, board games, etc. Sports and working in rec. is basically how he fills his days. Danny wasn't a Boy Scout before his arrest, but he's also never been in a bunch of trouble. He had a decent job when he was arrested. We joke sadly that Danny was here before most of us arrived and will be here after we all leave... since he was sentenced to 13 years. A short sentence and probation would have been plenty for Danny, and, frankly, he's kept an amazing attitude given what he's had to and will continue to slog through.
Spiro - Spiro is a graduate of Purdue and was working in robotics when he was arrested. Tall, thin, and quiet, Spiro has continued his studious ways by enrolling in a college correspondence program from here. He's always deep into some heavy tome of a college text when he's not outside running (his new hobby). He's fallen in with a guy here who's here on drug charges (See, we can get along...), and Spriro has become his acolyte. They're working on distance training with eye toward running marathons when they're both released. For Spiro, it'll be awhile. He was sentenced to 10 years and has only served a couple of them. Another waste of your money and his time.
Of course, as we think about the situations of the men in "The Gang's All Here" and others, we have to wonder what happens if these very long sentences become widely known in the community? [They probably won't.] While I don't think it's likely that most CP offenders were ever going to directly harm a child, Charles Patrick Ewing has an interesting take on this.
"At a more practical level, a sentencing structure that punishes images of child sexual abuse more harshly than child sexual abuse itself creates perverse incentives for pedophiles and other individuals sexually attracted to children: Gratify you sexual needs by viewing pornographic images of children and risk two decades or more behind bars; sexually abuse a child (short of penetration) and risk a relative "slap on the wrist."
"The notion that penalties for possession of child pornography should be much less severe than those imposed for hands-on child sex offenses is neither new nor untested. In England and Wales, where both real and virtual (i.e. computer-generated) child pornography is outlawed, many individuals found in possession of child pornography receive cautions (warnings that become part of an individual's criminal record but do not result in conviction.) From 1998 to 2004, for example, 624 child pornography possessors were cautioned in England and Wales, while 1,831 were formally prosecuted and 1,267 were convicted."
Ewing continues, "Individuals in England and Wales charged with possession of child pornography face a maximum sentence of 5 years in prison, while those who create, distribute, show, advertise, or possess child pornography with the intent to distribute it may be sentenced to a maximum of 10 years in prison."
The idea of perverse incentives and the unintended consequences of overly harsh CP laws is bolstered by the work of Milton Diamond at the University of Hawaii. Diamond's research has shown that child abuse rates declined in the relatively narrow window of time that CP was legal in the Czech Republic after the fall of Communism. His work also showed lower levels of child sexual abuse in Denmark and Japan during the period that CP was legal in those countries. While not calling for legalization of CP, Diamond's research does advance the idea that the existence and pervasiveness of CP and rates of child sexual abuse have an inverse relationship and helps advance the idea that perverse incentives might arise with overpunishment of CP offenders.
And nearly a decade behind bars often appears the least of a (federal) CP offender's worries. Without going into too much detail in these topics, after their release, CP offenders often face lengthy stays on state sex offender registries and often face lifetime supervised release/probation upon release. If he is deemed "sexually dangerous" - a woefully vague phrase, a CP offender can face indefinite civil commitment after his term of incarceration ends.
Lifetime supervision is a particularly curious development given the extremely low recidivism rates of CP offenders . The PROTECT Act of 2003 (that also created mandatory minimums for CP crimes) raised the maximum statutory term of supervised release from 3 years for most CP offenders to a lifetime term for all CP offenders and also created a statutory mandatory minimum term of 5 years for supervised release for non-production offenders. The sentencing guidelines currently recommend a statutory maximum of lifetime supervision for all CP offenders .
In addition to the personal costs of incarceration, civil commitment, a lifetime on the state's sex offender registry, and post-release supervision, there are economic opportunity costs that I will come to in just a little bit. Before I do that I want to introduce a competing notion to the idea that demand for CP exclusively creates it production. I'm going to flip the idea a bit and suggest that in a non-commercial CP economy, supply might create its own demand. Many men (65% by some estimates) find Internet CP through Peer-to-Peer (P2P) file sharing where they search and download images using keywords found in filenames. This low-cost-to-entry, passive searching/guessing leads men to CP that they would not otherwise seek out or find. Their interest is casual and their efforts minimal. P2P file sharing of CP is analogous to the original P2P platform, Napster, a platform that facilitated the free, illegal exchange of music files. Indeed, Napster did not create a demand for more new music; it almost DESTROYED the existing music business by REDUCING the demand for new material. The pre-existing music (supply) found a new market (demand) by the creation and launch of free, illegal P2P file sharing.
Also, while most supply-and-demand economies (cars, washing machines, cocaine, etc) operate on the production of tangible goods that are used and eventually replaced, Internet CP is essentially a copy-and-provide economy. Here again, supply can create its own demand (and fulfill all of it), and demand can be met from a supply that is never "drawn down."
Indeed, each time demand is met via P2P filesharing, a new supply and supplier are created. Effectively, most "suppliers" of Internet CP are not producers but "middle-men" who are distant and distinct from the original production and supply. Demand for CP draws largely from a pre-existing, inexhaustible supply that is merely copied. New pornography is created when producers in the market CHOOSE to create it, not because the market could not otherwise be satisfied by an ocean of pre-existing, shareable files - again, just like musicians existing alongside Napster.
Unlike the for-profit CP magazines and videos of the 1970's, the current CP market operates largely through the free exchange of images. So, while a CP offender will often face sentencing enhancements that add years to his sentence for the age of the victim, the nature of the abuse depicted, the number of images collected, etc, the offender might actually be 50 to 100 (or thousands?) of file exchange generations away from the original source material - much too far away to play a role in general, much less specific, characteristics of the CP created. Also, due to the nature of file sharing, he will almost certainly have no idea what's actually in the file prior to receiving it. The offender is hardly in a position where his personal tastes and general demand drive production. Understanding all of this, we can see that the Internet CP market is something other than a traditional economy. So what is it?
If we look at CP, we find, much like child sexual abuse generally, it occurs at the hands of someone close to the victim. Also, as U.S. Federal Public Defender Deirdre von Dornum noted in remarks to the U.S. Sentencing Commission, officials know from interviews with men who produce CP and later share it that they first and foremost create it for their own, primary use . Later, they decide to share it. Yes, it strains credulity to imagine that a parent, other relative, or friend would sexually abuse a child, digitally record it, and give it away freely on the Internet if he wasn't already victimizing the child for his own gratification. Seen with this appreciation and through this lens, we can understand modern CP not so much as a continuation of for-profit exploitation from decades ago as it is the ancillary by-product of ongoing domestic child sexual abuse by someone with a digital camera and need for exhibitionism.
And if we examine and consider Internet CP as that, a supply-driven economy and not solely a demand-driven product, we would be especially wise to consider a different set of policing, investigating, and prosecutorial priorities - ones focused on catching the initial perpetrators. In fact, this was the initial intent of federal CP laws.
Instead of producers, federal non-production CP offenses (possession, receipt, distribution) currently comprise 90% of the federal caseload. The focus and expense of these cases result in opportunity costs highlighted in Justice Perverted: "The annual number of child pornography possession convictions in the federal justice system continues to grow rapidly. In recent years, there has been a 15% annual average increase in sex offenses handled by the federal courts, and child pornography offenses have accounted for 82% of this growth. The cost of federal incarceration also continues to rise. According to the U.S. General Accounting Office, the annual budget for the Federal Bureau of Prisons nearly doubled during one 10-year period. Thus the quarter of a billion dollar figure (for jailing CP offenders) seems bound to grow as both federal child pornography possession convictions and the cost of federal incarceration increase."
"Clearly one way, if not the only practical way, to reduce the staggering costs of federal incarceration for those convicted of possessing child pornography is to decrease the criminal penalties for this offense. But criminal sanctions for possession of child pornography should be reduced not simply to save money but rather to use portions of their cost more productively in the government's efforts to combat the production and distribution of these images of child sexual abuse. To get an idea of how some portion of that quarter of a billion dollars could be spent annually in ways that are likely to be more productive than simply tacking additional years onto the sentences imposed upon those convicted of possessing child pornography, consider the Innocent Images National Initiative (IINI). The IINI is a federal law enforcement program directed by the FBI's Cyber Program. IINI is focused on "organizations, enterprises, and communities that exploit children for profit or personal gain." IINI targets "major distributors of child pornography...who appear to have transmitted a large volume of child pornography via an online computer on several occasions to several other people" as well as "producers of child pornography." As part of this program, the FBI recently initiated the Innocent Images International Task Force, in which "investigators from more than five countries are assigned to the Innocent program within the US [and help] the FBI address the global crime problem [with a] focus on several large international cased draw[ing] upon extensive resources.
"In fiscal year 2008, IINI was funded at $60.8 million, or less than one quarter of what the U.S. government committed to spend on the incarceration of child pornography possessors CONVICTED IN THAT YEAR ALONE, [caps by F]"
"In fiscal year 2008, IINI set a target of rescuing "100 children who were identified as victims of child pornography." "Rescuing" was defined as "bring[ing] the child to safety away from the control or influence of the person(s) exploiting him or her." IINI exceeded this target by more than 50% "rescuing 187 children." In the same fiscal year, IINI set a target of shutting down 1,000 child pornography websites or web hosts. IINI exceeded that goal as well, forcing the shut down of 1,474 websites or webhosts featuring child pornography."
Ewing continues, "Clearly, given the nature of child pornography and the role the Internet plays in its distribution, governments efforts to combat it must employ many different tactics. The investigation, conviction, and incarceration of those who possess child pornography is certainly one valid if not vital approach to the problem. However, child pornography is a blight that transcends international borders and is unlikely to be significantly reduced by punishing a small number of individual possessors to lengthy prison terms in the U.S."
"Any substantial reduction in the production and marketing of child pornography will require more sophisticated, internationally cooperative efforts such as those employed by the IINI and its international task force, aimed at large-scale producers and distributors as well as Internet service providers who are aware that their services are being used to transmit images of child sexual abuse but who do nothing to stop such commerce.
"If Congress were to follow the lead of England and Wales, thereby imposing a maximum sentence of 5 years in prison for possession of child pornography, even if every convicted offender received the maximum sentence, the average cost of incarceration for those offenders would be reduced approximately one third, thereby enabling the federal government to invest approximately $80 million or more per year in programs such as IINI and its international task force that not only target producers of child pornography but also rescue some of their child victims."
I think Charles Patrick Ewing and others are on to something... At the outset, I said that we were "ADRIFT." Let's fix the current scheme that includes overly harsh sentences for federal, non-contact CP offenses so that we can stop creating situations like the ones I profiled in "The Gang's All Here." Some ideas:
(1) Fix the Sentencing Guidelines - Judges, attorneys, and some prosecutors are clamoring for these changes. Judges depart below the guidelines in over 50% of cases now. Make the punishment fit the crime. Create a system that yields an appropriate sentencing range. As with crack cocaine adjustments, make the changes retroactive.
(2) "Don't make a federal case out of it." - The old saying exists for a reason. The federal system should be reserved for the very worst and biggest offenders. Don't apply it just because a computer was used in "interstate commerce."
(3) Focus on the producers - This is so obvious, I debated even including it.
(4) Reduce or eliminate mandatory minimum sentences - a 5 year prison sentence is a big, unnecessary first-step for someone who's never even been arrested before. Trust me, tax money is wasted after the initial shock of prison wears off. From then on, it's just treading the waters of criminality and boredom. When possession is an individual's major crime, prosecutors should plead away receipt and passive P2P distribution.
(5) Considers binding pleas - I get it. Prosecutors want wins and some prison time. I've met men here who agreed to plead guilty and gave up their appeal rights for a plea bargain that locked in a 36-month (or less) sentence. For someone who was sentenced to twice that, something like that smells like a good start until we get the guidelines fixed.
(6) Let's change the language - Let's stop reflexively referring all men convicted of these crimes as "pedophiles" (without a diagnosis) and "predators". Also, let's quit referring to non-contact child pornography crimes as "child abuse" crimes and prohibiting these offenders from B.O.P and rehabilitation programs that are available to everyone else.
(7) Fix supervised release conditions - Child pornography crimes have recidivism rates in the very low single digits. Meanwhile, we ask that men reintegrate and become productive citizens when prison is over. That's difficult with arduous, lifetime release conditions.
(8) Ditto sex offender registries - Men who view CP should probably be restricted in the types of jobs they can have and their unmonitored time around children. Restricting where they can live, travel, and recreate and being on public registries for the rest (or much of) of their lives is too much.
(9) Focus on intervention sooner to avoid arrests/convictions - CP offending is adjudicated by the courts when, frankly, it would be better handled in the mental health arena. Intervene sooner than later and move men to counseling where the solutions to these problems exist. As with drug and alcohol addiction, let's think rehab and not a decade in prison.
(10) Every list of good ideas should leave a blank spot for someone else's. What's yours?
 Charles Patrick Ewing, Justice Perverted: Sex Offense Law. Psychology and Public Policy (2011), Oxford Press, 237 pages.
 "Statistics Laundering: False and Fantastic Figures" www.libertus.net.
 Troy Stabenow, "A Method for Careful Study: A Proposal for Reforming the Child Pornography Guidelines," Federal Sentencing Reporter (Dec. 2011), Vol 24, no. 2. 108.
 Michael L. Bourke and Andres E. Hernandez, "The Butner Study Redux: A Report of the Incidence of Hands-On-Child Victimization by Child.
 Andrew Wolfson, "Do Viewers of Child Porn Also Molest?" Louisville Courier Journal.
 Jacob Sullum, "Our Misguided Child Porn Laws Do Little to Protect Children." Reason Magazine. 2014.
 Dr. Richard Wollert et. al., "Federal Internet Child Pornography Offenders - Limited Offense Histories and Low Recidivism Rates" - THE SEX OFFENDERS, Vol VII, 20112.
 Amy Adler, "The Perverse Law of Child Pornography." Columbia Law Review (2001), 209-273.
 United States Sentencing Commission. Executive Summary, Report to Congress: Federal Child Pornography Offenses. 2013.
 Dierdre von Dornum, Deputy Attorney-in-Charge for the Federal Defenders Office, EDNY, Testimony to USSC, Feb. 15, 2012.
-Rachel Aviv, "The Science of Sex Abuse" The New Yorker, Jan 14, 2013 p. 36.
-Jamey Dunn, "Sex Offender Legislation is Often More About Politics Than Justice" Illinois Issues. Sept. 2011.
-J Endrass et. al. "The Consumption of Internet Child Pornography and Violent Sex Offending." BMC Psychiatry.(2009): 9, 43
-Michael Seto an A.W. Eke. "The Criminal Histories and Later Offending of Child Pornography Offenders." Sexual Abuse: A Journal of Research and Treatment (2005): 201-210.
-Kate Sheppard, "To Cash in on a Predator," Mother Jones Nov/Dec 2011 p. 12.
-Sen. Arlin Specter and Linda Dale Hoffa, "A Quiet but Growing Rebellion Against Harsh Sentences for Child Porn Offenders - Should the Laws Be Changed. The Champion, Oct. 2011, pg. 12.
-Andrew Wolfson, "Are Child Porn Laws Unfair? Viewers' Sentences Can Be Worse than Molesters". Louisville Courier Journal.
- "When you get the message, hang up the phone." -Alan Watts, 1960's popularizer of Eastern philosophy
- "Studying the rule breakers is a good way to understand the rules." Anthropologist Alison Richard in discussing the importance of studying lemurs, prosimian outliers in Madagascar.
- "Anger is not an expression of strength. It is an indication of one's inability to control his thoughts, words, and emotions." -Late President Gordon B. Hinckley of Jesus Christ of Latter Day Saints (Mormons)
- "Why is it that we've become a nation obsessed with punishment? The reason is that we've become a fearful nation. The people that were once free and brave are so afraid of something bad happening to them. They're attracted to politicians who say, "I will be tough on crime." And if a politician promises to be tough on crime, he's got to have something to show for it." -Alabama judge Douglas Johnstone
- "Every idle moment is treason." -Thomas Carlyle in the Boston Herald
- "The problem with irrational responses is they they can cloud the need for rational ones." Time magazine on Ebola
- "We will have a more just society as soon as we want one." -Journalist George Packer in Boston Globe
- "The highest calling of leadership is to unlock the potential of others." -Carly Fiorina in Huffington Post
- "Silence can so easily look like comfort." Johnetta Elzie of Ferguson, MO, activist with 16,000 person newsletter
- "Why should we have to go to class if we came here to play FOOTBALL... We ain't come to play SCHOOL." -OSU QB Cardele Jones in 2012 Tweet
The Innovators - Walter lsaacson
The Strange Case of the Mad Professor - Peter Kobel
On the Far Side of the Mountain - Jean George Craighead
My Side of the Mountain - Jean George Craighead
The Good Lord Bird - James McBride
Lookaway, Lookaway - Wilton Barnhardt
Neither Here nor There - Bill Bryson
Where'd You Go, Bernadette? - Maria Semple
Hope you enjoyed,
P.S. New Yorker cartoons return in the next letter!