Huffpost Crime
THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Macie Melendez Headshot

Why Current Child Porn Laws Imprison the Wrong People

Posted: Updated:

Growing up, I was taught that prison was a place where people went when they did bad things. It was simple then: There were good people and there were bad people.

As I got older, the picture grew more complicated. I saw good people do bad things, and I saw bad people do good things. But recently, when one of the best people in my world did something that landed him in prison, my beliefs about the justice system and how it punishes American citizens were completely upended.

My friend was sentenced to five years in a federal prison for obtaining five pornographic images and one video that featured a minor. (This number is minuscule compared to the hundreds of thousands of images and videos that are collected by serious offenders.) He obtained these images through a peer-to-peer file sharing program. He was intentionally downloading porn, but he was not seeking out child porn. Once he knew the images and video file existed, he deleted them.

Unfortunately for him, there was a member of the FBI searching the Internet for child pornography offenders. That FBI agent was able to track his computer's IP address, find out who he was and where he lived. In that process, the FBI learned that he was a young man who held a full-time job, had earned a Master's degree and had never been convicted of a crime -- in fact, he had never been arrested for anything at all. In spite of those facts, the FBI felt it necessary to send about a dozen agents to his apartment, armed with guns and dressed like they were going into a war zone. They had a search warrant and used it to raid his apartment. When they didn't find anything, they left.

The FBI continued to monitor him while he went about his normal, crime-free life. After eight months of investigating, the FBI still found nothing more than that first unintentional download. Regardless, several FBI agents came back to his apartment, put him in handcuffs and took him to jail.

I now see that laws simply aren't black and white. Instead, they come with a lot of grey matter. Within that grey matter is emotion -- a powerful fuel that charges people to action. But emotion can be dangerous as it often clouds logic and critical thinking. For this reason, our laws dictate that courtrooms be presided over by emotionless judges; lawmakers, however, aren't given these same emotional restrictions.

Congress' repeated escalations of penalties for child pornography offenses are an example of emotion getting in the way of logic. What voter wouldn't support severe punishments for those supporting or distributing films with underage sex and nudity? Especially when they are explained as a means to catch the worst of the worst. But in reality, in practice, these laws have formed the basis of a modern-day witch-hunt that thrives on the vagaries of the Internet and too often captures individuals who make relatively simple errors online, rather than those who produce such material or directly abuse children.

In late February 2013, the United States Sentencing Commission (USSC) released a report to Congress that examined the cases of offenders that have been sentenced under current federal sentencing guidelines for child pornography offenses. This report was conducted for a number of reasons, including the fact that "an increasing number of courts believe that penalties are overly severe for at least some non-production offenders" and that "there has been a growing disconnect between the existing sentencing scheme and the continuing evolution in the technology used by offenders."

Non-production offenses include distribution, transportation (including shipping or mailing) or receipt of child pornography. In 2003, the PROTECT Act increased the penalties for each of these offenses to a mandatory minimum prison sentence of five years, with a maximum term of 20 years.

In part, these sentences were increased due to the belief that child porn sex offenders had high recidivism rates once they were let out of prison--a belief that has since been proven wrong. In two studies of note, done by the Bureau of Prisons and USSC, sexual recidivism rates were calculated at 5.7 percent and 7.4 percent, respectively. These numbers are extremely low in comparison to non-sexual crime recidivism rates, which according to a 2007 Bureau of Justice Statistics study, are upwards of 78.8 percent for motor vehicle thieves and 70.2 percent for those possessing, using or selling illegal weapons, for example.

The growing disconnect between sentencing and technology used by offenders refers mainly to the now-prevalent sharing and downloading abilities available online. Unfortunately with the introduction of the World Wide Web came a much less traceable child porn market: one that has transitioned from the physical mailing of printed images and videos between and among known accomplices to peer-to-peer file sharing programs used by faceless offenders unknown to one another. The use of file-sharing networks has grown steadily since the days of Napster--one of the more-popular sites, BitTorrent, currently boasts 170 million active monthly users.

Critics of the current sentences include the Department of Justice, the defense bar and the majority of the federal judiciary. Their criticisms of the harsh sentences are numerous and include the fact that in many cases non-production offenders are receiving equal or greater punishments to offenders who physically abuse children sexually. This means that a man who rapes his 8-year-old daughter can currently be sentenced to fewer years in state prison than a man who sat alone at home and downloaded images of sexually exploited children, a federal crime. Needless to say, these mandatory minimum sentences run directly against the grain of common sense.

My friend admits to making a mistake: He was using a file-sharing program and included pornography in his downloads, both high-risk actions in hindsight. But is his mistake one that warrants a five-year prison sentence? Absolutely not. As the presiding judge in his trial rightly identified, he is not a pedophile and poses no threat to society. Instead he is the victim of the passive sharing capabilities of the Internet. Because of the peer-to-peer file sharing used, the prosecutor in my friend's case claimed that he was distributing the images, which requires a mandatory minimum sentencing of five years--a technicality that is clearly a misuse of the law. That decision tied the judge's hands, barring anything less than five years in prison.

And my friend isn't the only one this is happening to.

According to the USSC report, the number of federal prosecutions for child pornography offenses has grown considerably in recent years, especially in non-production offenses, which went from 624 cases in 2004 (the first year after the PROTECT Act) to 1,649 cases in 2011. Additionally, the report states that the use of technology by offenders is largely unknown due to the fact that the majority of people getting caught aren't hiding behind such technology. In other words, major child pornography offenders aren't getting put in prison very often. Instead, it's the individuals who either aren't very good at hiding their intentions or those who didn't know they had anything to hide.

But that's not the only disconnect here: Our society accepts legal porn. Online and physical video stores sell pornographic movies with "barely legal" in their titles by the millions. In a recent study of the Internet Adult Film Database (IAFD), the world's largest database of adult films, a researcher and author named John Millward spent six months analyzing porn stars. His report, printed online by the name "Deep Inside: A Study of 10,000 Porn Stars and Their Careers," investigated which female sex roles have been most popular in porn titles. The most popular role was "teen" with 1,966 titles, sixth-most popular was "daughter" with an additional 261 titles, and thirteenth was "schoolgirl" with another 111 titles. The IAFD was visited by 20 million people in 2011, according to Millward. Couple just that number of porn watchers with the large amount of legal teen-titled porn available online and it's not surprising that unintentional illegal downloads have been increasing.

It has been nine months since my friend turned in his jeans for a pair of regulation khakis. Since he walked into prison, he has missed Thanksgiving and Christmas around his parents' dinner table. He has also missed standing next to his brother as the best man at his wedding. That's not to mention all of the much more trivial things he has missed like sleeping in a room with a closed door, going to the grocery store, and being able to talk to his friends and family for longer than 15 minutes at a time.

All of this is time--and taxpayer money--that could be much better spent elsewhere. Instead of years of prison time, we could punish these minor, hands-off, first-time offenses with probation and counseling, for example. This way, we'd be using money and resources to ensure that these offenders understand the serious nature of child pornography crimes without taking away their support groups. But ruining their careers, relationships and reputations by imposing long prison sentences isn't necessary. In fact, it's counterproductive.

How Can You Help Change These Laws?

Several organizations are working to bring these sentencing issues to light in Congress. You can learn more about them by visiting their websites listed below or by writing to our Congress members.

CAUTION Click

Change.org

Families Against Mandatory Minimums

Federal CURE

Reform Sex Offender Laws, Inc.; California Reform Sex Offender Laws

USA FAIR