Long Child Pornography Sentences Just Don’t Work

Did you know that long prison sentences don’t really deter crime? Researchers found that threatening people with long prison sentences does very little to deter them from committing a crime. And a National Institute of Justice report found this to be true. “Research shows that the chance of being caught is vastly more effective than even draconian punishment,” the report says, citing numerous studies that have found the same. See nij.ojp.gov

What Works to Prevent Child Pornography Crimes?

So what does work to prevent child pornography crimes? As those researchers said, an increased risk of being caught has a big effect on someone’s decision not to commit a crime. Fear of getting caught works, but fear of going to prison doesn’t. Yet, lawmakers keep increasing prison sentences for certain crimes, saying that’s what’s needed to stop people from breaking the law. Did they not get the memo that it doesn’t work? It’s insanity.

Look at child pornography sentences. By far, child pornography is the most common federal sex offense. With the expansion of internet access, child pornography offenses have continued to track upward, blowing past all other sex offenses. So, what did Congress do in response? It jacked up the sentences for child pornography offenses, in most cases doubling them, and then mandated that judges impose those ineffective sentences. Instead of some reasonable time in prison plus some treatment, now child pornography offenders are given decades in prison, even for first-time offenses. As federal judge Jack Weinstein noted, federal child pornography offenders often receive sentences higher than what murderers get. See NYTimes.com: Defiantly, Jack Weinstein Rules in Child Pornography Case (Jan. 14, 2011)

Have these longer sentences stopped or even reduced child pornography offenses? Not at all. It wasn’t even a bump in the road. Let’s look at the numbers. According to the National Center for Missing and Exploited Children, in 1998 they received 3,000 reports of child pornography activity by internet service providers (ISPs) on their systems. In 2014, that number shot up to 1 million. By 2018, the number of cybertips received by NCMEC exploded to 18.4 million, involving over 45 million images and videos. In 2020, 21.7 million cybertips were received, involving more than 65 million images and videos of child pornography. (Note: ISPs are required by law to report any child pornography activity they find on their systems to the NCMEC. 18 U.S.C. § 2258A.)

Treatment for Child Pornography Offenders Works

With the federal prisons already overwhelmed with the tens of thousands of prisoners serving long sentences for child pornography, where would the feds put all those millions of supposed child pornography offenders? That’s if they could bust them all (which they can’t). They couldn’t even handle locking up 1% of them with the resources they currently have. No, it’s not good that so many people are dabbling in child pornography. So maybe taking a look at why they’re messing with this stuff would be a better idea.

Forgive me for comparing drugs and child pornography, because so many people have done so, but it seems like we’re on the same destructive path as the failed “war on drugs.” That’s when lawmakers kept bumping up prison sentences for drug crimes in an attempt to stop drug offenses, and the federal prison population exploded with people serving long sentences. Did this reduce drug crimes? Not at all. They actually keep going up, just like the child pornography crimes noted above.

Finally, the attitude shifted from “lock ’em up and throw away the key” to “let’s get them some treatment.” It only took about 30 years to figure out that long sentences didn’t work to deter drug crimes. Child pornography offenses, on the other hand, are more difficult. No politician wants to be seen as “soft” on sex crimes. That is, no politician has the guts to say that being “tough” (i.e., imposing long sentences) on sex crimes isn’t working.

The Feds Allow Child Pornography Crimes to Keep Going to Net Longer Sentences

The point of criminal laws is to deter crime. So why do the feds allow child pornography offenses to continue to thrive online without taking steps to shut it down when they find it? Remember the “Playpen” child pornography disaster a few years ago? That’s where the FBI took over a major child pornography server and left it running while hundreds of thousands of users downloaded and uploaded child pornography to it. More specifically, over 215,000 users accessed child pornography on the Playpen website after the FBI took over the site at the end of 2014 into 2015. They arrested 956 people but only obtained convictions in a handful of those cases. That’s it.

It’s clear the FBI cannot handle the masses of people dealing in child pornography on just that one website, and there are countless websites out there like the Playpen website.

What’s currently being done just isn’t working. That’s obvious. Sure, increasing the chance of getting caught would deter some child pornography offenders. But that’s only if they knew they were being watched. Unfortunately, the FBI and other federal agencies operate in stealth mode so they can catch as many child pornography offenders as possible. They’ll let people upload and download child pornography for months, never saying a word until they’ve got enough to hit them with so many charges that it all but ensures a guilty plea and lengthy prison sentence.

But isn’t this supposed to be about preventing child pornography offenses? The FBI has instead turned busting child pornography offenders into a game: How long can we let this go on until there’s enough charges to really slam this guy? Never mind that the victims’ images are being spread across the internet by the minute.

Let People Know They’re Being Watched

Long child pornography sentences don’t work to prevent these crimes. That much is clear. What works is increasing the odds of getting caught. So what would that look like? When the FBI took over the Playpen website, it infected these hundreds of thousands of users with malware which reported the user’s information back to the FBI. In short, it secretly infected people’s computers with a virus. Again, this was the stealth mode in which the FBI operates.

But what if the FBI simply gave notice that it was watching everyone who accessed Playpen’s website? Since most child pornography offenders talk to each other (that’s how sources of material are made known), word of the FBI busting one of the biggest child porn rings would have spread like wildfire. Oddly, that would have been very effective, according to the experts who have researched this stuff. But the FBI did the opposite. It’s hard to take the government seriously when it says it wants to stop child pornography when it does the exact opposite of what experts say would work in this effort. That’s insanity.

What Can Child Pornography Defendants Do to Get a Fair Sentence?

If you were to argue to a judge that long child pornography sentences don’t work, you’ll get nowhere. They’ve heard it before. While deterrence is one factor, and judges point to long sentences as a deterrence to others, it’s just one factor under 18 U.S.C. § 3553(a) that a judge must consider at sentencing. Another factor is the need for rehabilitation. Studies consistently show that sex offender treatment greatly reduces the chance of reoffending. Defendants should obtain an evaluation by a recognized sex-offender psychologist to show the court that there’s already minimal risk of re-offense, even before treatment. Couple that with the reports showing treatment reduces that risk even more, and you’ve got a good start at convincing the judge that a long sentence is not needed in your case.