I have not watched the televised hearings about the nomination of Ketanji Jackson Brown to the Supreme Court and have not deeply immersed myself in the news reports of them, but I gather that there has been a barrage of questions about sentencing for child pornography offenses. The queries have often shown an ignorance or a willful disregard for some basic criminal law principles that the lawyers who have attended elite law schools and clerked for federal judges should know.

          The law draws distinctions among related criminal behaviors to grade the culpability of the crimes and the possible sentences. For instance, I intend to kill Ted and I do kill him. While the wording of statutes is not precisely the same in all jurisdictions, in New York I have committed murder. The legislature has mandated a life sentence for that crime and gives the sentencing judge discretion of a minimum sentence between fifteen and twenty-five years.

          Assume that I intend to kill Josh, but I only wound him. Now I am guilty of attempted murder, which has a lesser sentence than for murder. But what if I do not intend to kill Tom but seriously injure him, and he dies? Although states use different labels for this crime, most places would say I have committed manslaughter, which has a lighter punishment than does murder. If I intended to injure Ted, Josh, and Tom but none dies, I have committed an assault, a crime that also has gradations.

          This all follows a common sense that the public shares. We think intentional killing is more heinous than unintentional killing. This is true for other crimes. We hear “armed robbery” and we think that is worse than other kinds of robberies. The criminal statutes reflect that common sense opinion.

          Child pornography statutes, however, often are different with little attempt to make distinctions among offenses or to grade culpability. This approach does not punish the worst offenders more severely than others.

          When I was a public defender, I did not have any child pornography cases. In those pre-internet days, few arrests were made for the offense. I, however, represented many people charged with drug offenses, and crimes, which we shall see, bear resemblances to child pornography.

          The illegal drug cases were broken down into categories that reflected judgments on the culpability of the offenders. The basic distinction was between sellers and possessors of controlled substances, which reflected the basic common-sense conclusion that drug pushers had committed worse crimes than those who only used the drugs. Sellers deserved, and got, more punishment than mere users.

Furthermore, both the possessor and seller categories had gradations by amounts. The greater the quantity sold, the more serious the offense. If I told a colleague that I had just been assigned a “sale case,” the immediate response invariably was, “How much?” That meant how much was the weight of the drugs allegedly sold. A sale of a kilo of heroin was a much different offense from pushing a few grams.

  The seriousness of possession cases, too, was measured by amounts, but for a different reason. Possessing more drugs was not necessarily worse than possessing a lesser amount if the drugs were to be used by the possessor, but the assumption was that a person possessing a large quantity of drugs was not possessing them solely for personal use. Instead, the possession of a large amount indicated that the person was really a seller. Thus, because he possessed with intent to sell, he should be punished more like a seller than a user. Once again, both the law and popular culture tried to distinguish among the drug offenses.

In state court, I never dealt with another category of drug offenders—the importer, the smuggler, or the manufacturer of a drug. We would simply call the smuggler or the meth cooker a “drug seller,” for they will sell their product, but that label does not suffice to categorize their criminality.  If you believe in our drug laws, the importer’s or manufacturer’s culpability is worse than the “clocker” selling drugs on a street corner. (If you are not familiar with that term, or even if you are, I highly recommend Clockers by Richard Price.) And of course, the culpability becomes worse the greater the amount of drugs made, imported, or sold.

My point is that we almost instinctively make what seem like natural distinctions among drug offenses and do not put the same label on all offenders. We require more information than the mere statement that a person is a drug offender.

This does not mean the gradations perfectly mirror culpabilities. For example, I represented a woman who was a user of drugs and, sadly, a prostitute in what was then a scruffy part of Brooklyn. An undercover police officer “befriended” her and offered her $50 if she would lead him to people who could sell him a kilo of heroin. After much beseeching by him, and after she made some inquiries, she led the cop to some major drug dealers who sold a kilo to the cop. She was charged with acting in concert with the big sellers although all agreed she stood to get only $50 from the transaction. For that she got a life sentence.

The drug gradations may not have been perfect, but it is right, and seemingly natural, that we make such distinctions. We recognize that all the behaviors concerning the drug trade are not equally culpable and should not be lumped together. Our response has been different for child pornography.

(Concluded March 28)

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