Should a person who views child porn face the same stiff prison sentence as someone who makes that child porn?
Utah’s defense attorneys don’t think so.
Neither does the Utah Sentencing Commission, which supported a proposal that would reduce the penalty for child porn possession and increase it for those who actually make it.
But the state lawmaker pushing this legislation has already abandoned any effort at reducing the penalty for possession child pornography. Deciding, after just a few days of public discussion, that it is a step too far politically.
Rep. Jim Dunnigan, R-Taylorsville, said he’ll still pursue a bill, one that increases the penalties for making child pornography to a possible life sentence.
His original proposal would have bumped the crime of possessing child porn from a second-degree felony down to a third-degree felony, dropping the potential prison term from one-to-15 years to a maximum of up to five years.
Under current law, all crimes involving child pornography — from possessing it to sharing it with others to actually creating it — all carry the same one-to-15 year penalty.
But Dunnigan said Thursday that there was concern that lowering the penalty for possession was “too big of a shift.”
“We don’t want to go so far the other way and be too lenient,” he said.
The Utah attorney general’s office frequently deal with defendants in child porn cases because it operates a special task force targeting online crimes involving kids. Ric Cantrell, the chief of staff for the attorney general’s office, said they are supportive of Dunnigan eliminating the portion of the bill that would have lowered the possession penalty — but didn’t say whether his office will support the rest of the proposed legislation.
“We are acutely interested in seeing justice done,” Cantrell said. “We want the same thing: punishment, justice and a path to redemption.”
But those groups who favored lowering the penalty say it may not be fair — or productive — to punish people so harshly for possessing illegal images.
“There are just too many people who, in all other aspects of their life are good, hard-working honorable people but get trapped in an addiction that often progresses from simply pornography to more explicit images of child pornography,” said Steven Burton, with the Utah Association of Criminal Defense Lawyers. “Currently, those people are facing one to 15 years in prison for every single image. It’s this idea that we don’t want to throw people away if they have an addiction.”
Burton added that people who have viewed child porn may feel like they can’t seek help because of mandatory reporting laws that require church leaders and therapists to report these types of crime to police.
“To me, that is one of the fundamental misconceptions or problems with retaining these high penalties,” he said. “It discourages people from getting the help they need.”
This week, the Utah Sentencing Commission — a government body made up of prosecutors, defense attorneys, judges and others in the legal system — also gave their support to Dunnigan’s bill, including lowering possession to a third-degree felony.
Executive Director Marshall Thompson noted at the commission meeting that when Utah’s criminal justice system was examined several years ago, a Pew study found that there were a high number of both sex offenders and those with low-level drug offenses in Utah’s prison. State lawmakers tackled part of the issue by passing reform for drug addicts that focused more on treatment over incarceration.
But there’s been no attempt to do the same for Utah’s sex offenders.
And as lawmakers continue to pass laws that boost penalties for sex offenses, the percentage of people locked up for sex crimes continues to rise.
Ten years ago, sex offenders made up 29.2 percent of prisoners. In 2018, that number increased to 34.4 percent. They are the largest offender group inside the Utah State Prison.
Thompson said the commission supports taking a more nuanced approach to the child pornography laws to make sure the most serious crimes are getting serious punishment.
“We want people who are high-risk — to the extent that it’s constitutionally acceptable — be removed from society,” he said. “Those who are low and moderate, we want to treat those people in the community. That’s where you get the best results.”
Thompson said people often don’t realize simply imprisoning people doesn’t fix the problem, because nearly every offender will be released from prison some day. Reducing the incarceration of low-level offenders and rehabilitating them could help public safety, he argued.
Dunnigan said his proposed bill wasn’t intended to lessen the sex offender population in prison. He said the discussion about lowering the penalty for child porn possession came from prosecutors who were grappling with certain situations where they felt the current law was too severe. One example he gave was a case where an 18-year-old boy was facing serious penalties, and a life on the sex offender registry, for sharing nude photos with his teenage girlfriend who is not legally an adult.
But he said he’s since heard from prosecutors who don’t support lowering the penalty.
He says his proposal takes “minor steps” in modifying sex offender laws.
But when asked if this was indicative of more changes in years to come, Dunnigan balked.
“Not from me.”
Correction: Jan. 13, 10:10 a.m. A previous version of this story misstated the attorney general's position on Rep. Jim Dunnigan's bill.