Federal Judiciary

U.S. v. Olander (9th Cir. - July 15, 2009)

By Shaun Martin

That's the only way I can explain the structure of 18 U.S.C. sect. 2252A, which is the main federal child pornography statute. To the detriment, sadly, of a coherent and rational statutory scheme.

Section 2252A(a) contains a plethora of provisions that probibit pretty much any type of connection with kiddie porn. You can't "mail or transport" it (Paragraph (a)(1)), "receive or distribute" it ((a)(2)), "promote or distribute" it ((a)(3)), "sell" it ((a)(4)), "possess" it ((a)(5)), or "distribute" it "to a minor" ((a)(6)).

Makes some sense, right? This is bad stuff.

The problem is that (a)(5) offenses -- the "possession" provision -- doesn't have a mandatory minimum and has a statutory maximum punishment of 10 years. By contrast, all the other (a)'s I've mentioned have a statutory minimum of 5 years and a maximum of 20 years.

But that makes sense, right? We punish possession less than the other production-side stuff, which is worse. I get that.

Except for that pesky (a)(2). Which only requires that you "receive" kiddie porn. Remember, anyone who "receives" kiddie porn gets a minimum of 5 and maximum of 20. But if you "possess" it, it's only zero to 10. Which makes no sense: obviously, if you "possess" kiddie porn, you at some point "received" it. Why would any rational observer punish the two offenses differently?

Judge Willie Fletcher goes through the legislative history in a way that, to me, makes crystal clear that this was a drafting error by Congress. But he concludes that there's nothing the judiciary can do, since there's the plain language of the statute and at least a theoretical reason why the statute might be written that way.

I must say that Judge Fletcher's hypothetical rationale doesn't make any sense to me. He says: "Congress could have concluded that knowing receipt of child pornography should be punished more severely than mere possession because not all cases of possession require receipt. For example, the creator of child pornography will not have received it." Wait a minute. The reason for this statutory distinction is so the actual creator of child pornography (who hasn't "received" it) gets punished less than the guy who merely downloaded it?! The dude who actually abuses the child gets less punished than the guy who watches?! That's the best hypothetical rationale you can come up with? Telling.

Why does the statute read the way it does, in my mind? Because (1) Congress clearly screwed up, but (2) no one cares, since these are kiddie porn sickos who deserve to rot, and if the statute erroneously subjects 'em to a mandatory five or extra ten years in prison, screw 'em. You really gonna be the elected member of Congress who sponsors the "Child Pornography Protection Act" that reduces the penalty for kiddie porn?! Yeah, right.

You might think that the judiciary has a greater role in cases of clear legislative failure of this type. Or you might not, relying on the democratic process to solve the problem (if any) of manifest legislative errors.

Judge Fletcher adopts the latter view. Different strokes for different folks.

Full post as published by California Appellate Report on July 15, 2009 (boomark / email).