Monday, February 28, 2011

No children were harmed in the writing of this post

I have a special place in my heart for a lot of people accused of making or possessing kiddie porn.

What? Did she really say that?
A photo of actual children here
might bias you against me.
Yep, I did.  But hear me out.  I say this because child molestation is one of the worst crimes possible in the minds of probably most Americans, and because of this a lot of people who weren't actually molesting children-- for the sake of making and distributing pornography or otherwise-- tend to get caught up in the legal crossfire and punished in ways that are far out of proportion to their deeds. Call me a bleeding heart, but I don't think it takes away in the slightest from the severity of real child victimization to feel for those who didn't actually victimize any children, but are treated as if they did.

For instance, teenagers who are guilty of "sexting"-- sending racy photos of themselves to each other.  No child molestation there, and yet in some parts of the country these kids are receiving felony charges and convictions for it.  In my own state of Texas they're considering downgrading this "crime" from a felony to a misdemeanor.  That's an improvement, but it would still mean using laws that were originally intended to prevent adults from preying on children to also punish teenagers for ill-advised behavior that damages little but their own reputations.  I understand the impulse to protect them from this considering that once photos get onto the internet they effectively become immortal, but surely arresting, convicting, and putting teenagers on a sex offender registry alongside rapists and actual pedophiles is precisely the opposite of "protecting" them.

In a case I read about today, the culprit is a little less innocent than a sexting teen-- okay, he seems downright creepy-- but what happened to him is nonetheless a travesty of justice.  A 34-year-old Indiana man named Eric Rinehart had sexual relationships with two young women, aged 16 and 17 respectively.  Yes, I know-- ew.  But it was entirely legal for him to do so, as the age of consent in Indiana is 16, as it is in roughly half the country.  One of the girls offered to take naked photos of herself for him, and he agreed and then later took more photos of her as well as the other girl.  He didn't distribute them at all, just kept them on his computer.  Here's what happened next:
In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison. Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied. There is no parole in the federal prison system. So barring an unlikely grant of clemency from the president, Rinehart, who is serving his time at a medium-security prison in Pennsylvania, will have to complete at least 85 percent of his term (assuming time off for good behavior), or nearly 13 years. 
Hamilton was not permitted to consider any mitigating factors in sentencing Rinehart. It did not matter that Rinehart's sexual relationships with the two girls were legal. Nor did it matter that the photos for which he was convicted never went beyond his computer. Rinehart had no prior criminal history, and there was no evidence he had ever possessed or searched for child pornography on his computer. There was also no evidence that he abused his position as a police officer to lure the two women into sex. His crime was producing for his own use explicit images of two physically mature women with whom he was legally having sex. (Both women also could have legally married Rinehart without their parents' consent, although it's unclear whether federal law would have permitted a prosecution of Rinehart for photographing his own wife.) 
"You can certainly conceive of acts of producing actual child pornography, the kind that does real harm to children, for which a 15-year sentence would be appropriate," says Mary Price, general counsel for the criminal justice reform group Families Against Mandatory Minimums. "But this is a single-factor trigger, so it gets applied in cases like this one, where the sentence really doesn't fit the culpability."
Families Against Mandatory Minimums, or FAMM, is a non-profit organization dedicated to changing legislation to prevent grossly out-of-proportion sentencing.  They deserve all of the support we can give them, but making changes in this area is decidedly an uphill battle.  
In his sentencing statement, Hamilton urges executive clemency for Rinehart. He points out that under federal law Rinehart received the same sentence someone convicted of hijacking an airplane or second-degree murder would receive. For a bank robber to get Rinehart's sentence, Hamilton writes, "he would need to fire a gun, inflict serious bodily injury on a victim, physically restrain another victim, and get away with the stunning total of $2.5 million." . . .
Hamilton is not the first federal judge to express frustration over federal child porn sentencing laws. In May 2010, The New York Times profiled U.S. District Court Judge Jack Weinstein, who after 43 years on the bench has essentially gone rogue, twice throwing out convictions of a man convicted of receiving child pornography because of the five-year mandatory minimum sentence attached to the offense. Weinstein has also indicated that in future child porn cases he will disregard the federal rules of criminal procedure and inform his juries of the sentences defendants will get if convicted. 
I would imagine that opponents of draconian laws against drunk driving have an easier time of it than people who take aim at those having to do with child porn.  Nobody wants appear as though they are coddling sexual predators, and so they are reluctant to speak out against the worst travesties of justice that come from laws intended to protect kids.  The road to hell is paved with such intentions, as a Florida lobbyist named Ron Book can attest.  Fear plus grief plus a desire for revenge can be the equation for some horrific legislation.  In order to prevent the victimization of people as an unintended consequence of this kind of legislation, we need to be able to speak up about it.  And in order to do that, we need to realize that there is a clear distinction between disapproving of a behavior (actual child molestation) and approving of measures purporting to stop it which actually don't-- just as with any other crime.

In the meantime, things do not look good for this case:
It could actually have been worse for Rinehart. Under federal law, he could have faced up to 25 years in prison. In exchange for a guilty plea, prosecutors agreed to seek only the minimum sentence. Unfortunately for Rinehart, that plea agreement also prevents him from challenging his conviction or sentence. His only hope for early release is executive clemency. Given the clemency records of the last two administrations, that does not seem likely.

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