This portion of Andy McCarthy’s latest post about the controversy over Judge Jackson’s sentencing decisions in child-pornography cases gave me pause:
The rationale for criminalizing consumption of child pornography is a market theory. Everyone — except, evidently, Republican senators at a hearing for a Democratic judicial nominee — recognizes that the offense of possessing images of child abuse is not comparable to physically abusing children. But we criminalize possession because people who seek to consume these images create and drive a market for them, which has the effect of causing more child abuse, even if the possessors do not themselves abuse children.
That’s part of the rationale for criminalization. It’s the entire rationale, according to the Supreme Court’s reasoning in cases in 1982 and 2002. (And that may be all Andy meant, in which case I don’t have a disagreement with him so much as with the state of the law.)
In the 2002 case, the Court invalidated a law against “virtual” child pornography because it directly harms no actual children (and might even, the Court came close to suggesting in an aside, reduce the exploitation of actual children). Can government ban this vile material because it “whets the appetites of pedophiles and encourages them to engage in illegal conduct”? No: To accept that rationale, the Court hazily argued, would license thought control.
This, it seems to me, was a serious mistake. For one thing, it’s hard to believe that the informed public of the time that the First Amendment (or the 14th Amendment) was ratified would have thought the government was enacting a right to free speech this broad.
If you believe the Court has wrongly adopted an extreme-Millian-liberal view of child pornography — albeit a false view that lower-court judges such as Judge Jackson are obliged to follow — and take a more expansive view of the harms of child pornography to our moral ecology, then the prevailing sentences, including those for “mere” consumption, might well strike you as too light.