I have written before that I think Arizona's "sexual exploitation of a minor" sentencing is far, far too severe (see "Should Mere Possession of Child Pornography Mean Decades in Prison?"). In Arizona, the sentence is a range from 10 to 24, with a presumptive of 17 years. It is a misdemeanor in California. Fortunately, it seems that my view is shared by the most unlikely group of people, federal judges. US District Court judges have a reputation for handing out severe sentences in all sorts of cases, and for any particular judge who may show a lenient side, the federal sentencing guidelines have weeded those tendencies out.
That being the case, it is quite remarkable a sizable group of federal judges have started asserting themselves and taken matters into their own hand. When I mean "taking matters into their own hand", I don't mean judicial activism or anything along those lines. What I mean instead is federal judges are now reestablishing the traditional constitutional separation of powers in which congress defines crimes and judges use sentencing discretion. And in fact, these judges are sentencing some offenders to probation or even just days in jail. For a list of cases, see child porn -- list of probation or one day -- final corrected.docx from the federal public defender's office.
One recent case that is particular interesting is United States v. Saenz, No. M-05-CR-877 (S.D. Texas 2011). That is because the sentencing judge, Judge Hinojosa, is the former Chair of the U.S. Sentencing Commission. In that case, the defendant had 126 images including an image of a boy being raped, but he never acted out against anyone. The important point here is that there is no evidence that someone who posses child porn will actually hurt anyone, and it makes no sense for Arizona to sentence someone to more prison time for possessing an image than actually acting out on it.
In fact, while I have no studies to support this view, it could be the case that possession of child pornography may actually be a safety valve of sorts in which a potential child molester may fantasize about children instead of actually doing something. My ultimate point is not that possession of child pornography ought not be a crime, but that automatically throwing the book at someone for mere possession is not such a great idea. Judges should have the power to decide which sentence is appropriate.
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