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Christine, 

Since the 1990’s the prosecution of the on-line dissemination of pornographic images of children has been a U.S. DOJ priority. In the first major national investigative and prosecution programs, Operation Long Arm, investigated by the United States Customs Service and the FBI’s Innocent Images, a minimum of 18 months of prison time was required by the Child Exploitation and Obscenity Section of the Department’s Criminal Division of any individual agreeing to plead guilty. In rare cases only a few images of child sexual abuse and rape were involved. However, due to the availability of thousands of images being posted on online bulletin boards on the alt.net, many defendants were caught in possession of hundreds of images. These defendants were required to serve significantly longer prison sentences and probation was not approved by the DOJ Headquarter’s Office overseeing the investigation and prosecution of images depicting child sexual abuse and rape in any case.”

Such serious penalties served as recognition that for the child depicted who must go through life knowing that their exploitation and abuse would be forever available on-line, each view, copy, distribution, and use was an entirely evil and ongoing victimization of that child. Moreover, the older the child depicted, the more likely that their visage would remain identifiable over time, overshadowing their life even in adulthood. Any proper policy must and did work to make child pornography radioactive for the consumer.

DOJ recognized that a harsh punishment scheme would not deter the pedophile, but it would deter commercial pornographers and adults seeking pornography not yet declared obscene from crossing the line. Two groups that could significantly add to the supply and demand of pornographic images of children and who could be deterred. Judge Jackson was accurate when she said that she was not alone in imposing significantly reduced sentences, but as a Supreme Court Justice , based on her hearing testimony, she has now raised questions as to whether she can be counted upon to support the goals of deterrence and punishment represented by stiff sentencing for such crimes as legitimate and necessary. Such a perspective sends a message that will be surely misconstrued—that cases involving the sexual abuse and exploitation of children that involve their images, but not the original creation, are the only ones that will result in life-changing sentences. And in doing so, she did herself and child victims a grave disservice.

J. Robert Flores, Esq.

Former Deputy Section Chief

Child Exploitation and Obscenity Section 1989-1997

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