"The unneccessary cruelty of the law"

The words of the Honorable Jack B. Weinstein, one of the last great lions of the federal judiciary; a living example of what judges were like before governing through crime (see chapter 4) made the very nature of the judicial role (equity, rationality, deliberation) appear subversive in our "war on crime." Weinstein is not, apparently, the first judge to be quesy about mandatory federal sentences for child pornography of at least five years in jail to a person whose only misconduct is having a sexual attraction to children and addressing that attraction by possessing child pornography. He is, however, one of the very few to criticize the law, which suggests that life-tenure is not enough to assure a robust defense of legality, the imagination itself can be crushed by the politics of crime fear.

Reporting in the NYTimes, A.G. Sulzberger quotes Judge Weinstein explaining what not even the most liberal elected politician today is likely to acknowledge.

“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.

“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

No doubt, a market for child pornography may in fact create economic incentives to further exploit children to produce it; a risk that government may address. What the judge is suggesting is that a willingness to address that problem with inflexible and punitive criminal laws aimed at the consumer shows a remarkable indifference to notion of individual guilt (or culpability in the language of jurisprudence).

As Sulzberger's reporting suggests, this is not a rare occurrence.

The child pornography industry has flourished through the Internet; the number of federal cases grew from fewer than 100 annually to more than 1,600 last year. As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders’ office, the average sentence was 91 months in 2007, up from 21 months a decade before.

We can defend our children without this kind of unnecessary destruction of life. Cruelty of the law indeed.