Last week, in United States v. Klug (No. 11-1339), the Seventh Circuit upheld a whopping sentence of 384 months for producing and possessing child pornography. This sentence was actually below the guidelines’ recommendation of life. Notably, for a case involving such an extraordinarily long sentence, there is no allegation that Klug coerced the child subjects of the pornographic videos he created, or that they were sexually molested. Rather, the videos were made covertly, mostly involving showering, changing clothes, using the bathroom, and the like. Moreover, Klug disguised the faces of the subjects before circulating their images.
Of course, what Klug did was very wrong, and if the kids ever find out that these sorts of images of them were circulated on the Internet, they would be well justified in feeling violated. Still, in challenging the substantive reasonableness of his sentence, Klug may make a fair point that the district judge’s decision leaves little meaningful difference in the punishment for what he did and what the producers of violent, hard-core child pornography do.
Although not using the term, Klug apparently framed this argument as one of marginal deterrence: if we give 30-year sentences to producers who don’t molest their subjects, there’s no reason not to molest.
Citing earlier decisions examining this sort of marginal deterrence theory, the Seventh Circuit effectively rejected its relevance for kiddie porn cases:
The theory of marginal deterrence does not aid defendants like Klug who produce child pornography because “child pornographers who molest the children whom they photograph can be punished separately for molestation.” (9-10)
I’m not sure how persuasive this response is. Yes, molestation can be charged in separate counts and be punished formally with additional time in prison. But there are only so many years that any person can serve. Once you are in for 30 years, how much marginal deterrence would there really be from the threat of, say, an additional 10 or 20?
Perhaps a better response to the marginal deterrence argument would be this: deterrence is more a function of the certainty of punishment than its severity. There is thus a good reason not to take the step from the “peeping Tom” style of porn production to more overt actions because doing so will increase the risks of getting caught. When your victims know that they have been victimized, they are obviously much more likely to report the crime. So, the marginal deterrence would come from the certainty side of the equation, even if not from the severity.
But apart from the marginal deterrence question, Klug might still have a good argument that his sentence is disproportionate to the severity of his crime. Thirty years is a very long time. Isn’t that the sort of sentence we would expect for crimes of overt, extreme violence?