CFC OKLAHOMA

Does the punishment fit the crime for child porn?

www.news-herald.com/articles/2009/11/19/news/nh1709699.txt

By Tracey Read
TRead@News-Herald.com

Legal experts on all sides agree that downloading and watching child pornography is repugnant behavior.

What they are at odds over is whether such defendants are as much of a threat to society as rapists or murderers.

Nationwide, judges are questioning whether mandatory and recommended sentences for child porn are too harsh.
From 1996 through now, the FBI alone has opened more than 23,000 cases of crimes against children over the Internet.

In 1990, Congress criminalized the possession of child pornography and later passed legislation to significantly increase penalties for these offenses.

The penalties

In 1991, a person with no criminal history who possessed violent child pornography images and movies and shared them with others would face a maximum of two years in prison in federal cases. Today, that same person could face more than 20 years behind bars.

The mandatory minimum sentence is 10 years for online predators who drive hundreds of miles for sex with minors they met in online chat rooms.

Receiving child porn carries a five-year mandatory sentence.

But under guidelines set by the U.S. Sentencing Commission — a federal agency that turns legislation into rules that guide judges on sentencing — child porn viewers often accumulate penalties, known as "enhancements" that add time for those who use the Internet and other circumstances that appear in nearly every child pornography case.

This means the recommended sentences for viewers can easily be higher than those for predators.

"Simply stated, a defendant whose only crime is personal use typically receives the same sentence as a commercial peddler or someone who has molested a child," attorney Joseph W. Gardner stated in his sentencing memorandum on behalf of client Anthony Campana.

Campana, 41, of Fairport Harbor was sentenced to 20 years in prison Oct. 30 by U.S. District Judge Peter C. Economus in Cleveland.

Campana, a truck driver with no prior criminal record, was previously convicted by a jury of possession and distribution of child pornography.

Gardner requested Campana receive no more than six years in prison out of a possible life term.

The defense attorney argued, "His crimes were perpetrated on a computer, not on children."

Judges are rebelling

Lake County Common Pleas Judge Vincent A. Culotta said watching child porn is far from a victimless crime — as real children are forced into the underground sex world to make the images.

Yet Culotta said as a judge, his job is to compare child porn cases with other cases of similar nature.

Earlier this month, he was widely criticized on an online forum for sentencing an Eastlake man who swapped a large amount of child pornography to four years in prison — six years less than the prosecutor recommended.

The judge explained in court that 10 years was too much time in the case of Paul Skala, a 62-year-old man with no prior criminal record.

"You do realize that he never actually touched a child, right?" Culotta told Assistant Prosecutor Lisa Neroda.

He then gave recent examples in which the prosecutor's office recommended far lesser sentences for child porn cases in which the offender did have a prior criminal record.

He also pointed out cases in which physical contact between the offender and victim occurred — but the recommendations were still less than what they had asked for in Skala's case.

"There are a number of cases where people are being sentenced for actually harming children, and the recommendation does not even come close to 10 years," the judge said.

Experts say it has not been clearly established whether most viewers of child pornography are likely to commit acts of physical abuse.

Meanwhile, an increasing number of judges are starting to rebel against sentencing recommendations and guidelines in certain situations.

In April 2008, Jack Weinstein, a federal judge in Brooklyn, N.Y., threw out a conviction by making the argument that he himself had infringed on the defendant's constitutional rights by not informing the jury of the "harsh" five-year mandatory minimum sentence for receiving child porn.

Not a victimless crime

Chief Assistant Lake County Public Defender Charles Grieshammer said he hopes more judges will be open-minded when sentencing offenders.

"I don't think you can ever treat a child porn case as seriously as actually touching someone," Grieshammer said.

But Lake County Prosecutor Charles Coulson argued it's important to note that child pornography involves children engaged in actual sexual activity — and is not simply pictures of naked minors.

"These are real children we can identify before we charge someone," Coulson said.

"We know their names and their identities. We have to be able to establish they are minors to charge someone, or have an expert be able to say it's not a morphed picture.

"I don't know what the definition of a 'harsh sentence' is. But I do know that people are making money off of children by making them engage in sexual acts — sometimes with animals or with each other. When you buy these pictures, it facilitates more children being oppressed. You're enticing them to continue the abuse of children."

Scott Wilson, special agent with the Federal Bureau of Investigation in Cleveland, said he is pleased Congress decided to get tougher on child pornographers.

"Our main goal is to try and identify the children who are being forced into (child porn)," Wilson said.

"Get them identified and out of these conditions. Sometimes, it can be very difficult, but (since 2003) we've recovered 834 children that have been placed into prostitution in this country. We also try to get to the root of where it's produced. Unfortunately, we've seen it happen in pretty much every state in this country and all over the world.

"People think this doesn't happen in their own backyards, but it does. We're talking about children as young as infants involved in this. It's just a horrible crime."