International Child Porn Ring Found

[RC Vikings]

Originally Posted by JohnnyLingo

Mike prefers to live in a world where guys like this can do whatever they want.

Wow.

Lingo I don't want to speak for Mike but I'm pretty sure he is not for letting people run a child pornography ring. If you put a subject out there Mike is going to give you a different view point. How many of them he actually believes in is anybodies guess.

[creekster]

Originally Posted by JohnnyLingo

Mike prefers to live in a world where guys like this can do whatever they want.

Wow.

I look forward to LEvin' response, but I can tell you that no one should ever have to have their life in the hands of prosecutorial discretion.

[il Padrino Ute]

Originally Posted by creekster

I look forward to LEvin' response, but I can tell you that no one should ever have to have their life in the hands of prosecutorial discretion.

Sincerely,

Mike Nifong

[Levin]

Creekster: "I can tell you that no one should ever have to have their life in the hands of prosecutorial discretion."

First response:

Your life is always in the hands of prosecutorial discretion. What, when, and how our laws will be enforced are all in the hands of our law enforcement officials.

Generally, that's okay b/c there's democratic feedback. At the federal level, the Executive sets policy over law enforcement. Bush to DOJ and FBI = focus on terrorism, public corruption, child pornography, and guns; Clinton = ignore obscenity. One reason I didn't like Clinton was because he didn't prosecute obscenity offenses and the porn industry flourished. I was therefore more likley to vote Republican in the next election (still didn't, but still).

The democratic feedback is even more responsive at the state and local level where we directly elect our attorneys' generals and district attorneys. Point: if we don't like the way the laws are being enforced, then boot the prosecutors out.

More fundamentally, we're at the mercy of the cops' discretion every day. Why am I never pulled over for speeding, but Archaea always is (apart from the nice car)? Discretion of the officers. One example that applies in all areas. Oh, and mayors often set law enforcement policy at the city level, so even more democratic response there. Complain about jerky cops.

So my first point (the sequels will come later) is that your "we don't like prosecutorial discretion" argument is a non-starter; at the federal, state, and local level, we are at the mercy of law enforcment officials as to how the laws will be enforced generally and specifically.

But I'm okay with that b/c of the democratic feedback mechanisms we have place in our political processes.

[Levin]

Originally Posted by MikeWaters

There was a guy in Dallas - Fort Worth who was arrested at a community festival for taking pictures of the crowd in a lascivious manner. I can't remember the exact wording. At the time, some photographers discussed this online, and were frankly very puzzled. In the end, no charges were brought.

So the idea that all law enforcement have discretion is pretty laughable if you know anything about history.

Mike, you've got a non-sequitor here, but whatever:

So the idea that it's a huge problem for law enforcement to have too much discretion is pretty laughable if you know anything about modern America where we have vague statutes and purely discretionary enforcement.

[creekster]

Originally Posted by Levin

Here's my response:

1) Your life is always in the hands of prosecutorial discretion. What, when, and how our laws will be enforced are all in the hands of our prosecutors.

Generally, that's okay b/c there's democratic feedback. At the federal level, the Executive sets policy over law enforcement. Bush to DOJ and FBI = focus on terrorism, public corruption, child pornography, and guns; Clinton = ignore obscenity. One reason I didn't like Clinton was because he didn't prosecute obscenity offenses and the porn industry flourished. I was therefore more likley to vote Republican in the next election (still didn't, but still).

The democratic feedback is even more responsive at the state and local level where we directly elect our attorneys' generals and district attorneys. Point: if we don't like the way the laws are being enforced, then boot the prosecutors out.

More fundamentally, we're at the mercy of the cops' discretion every day. Why am I never pulled over for speeding, but Archaea always is (apart from the nice car)? Discretion of the officers. One example that applies in all areas. Oh, and mayors often set law enforcement policy at the city level, so even more democratic response there. Complain about jerky cops.

So my first point (the sequels will come later) is that your "we don't like prosecutorial discretion" argument is a non-starter; at the federal, state, and local level, we are at the mercy of law enforcment officials as to how the laws will be enforced generally and specifically.

But I'm okay with that b/c of the democratic feedback mechanisms we have place in our political processes.

The problem lies not in the fact that prosecurtorial discretion exists, because it always will as you point out. The issue is how much discretion should be granted. So if a law allows so much discretion that they can prosecute someone for photos of a concetration camp, it is likely too broad. Maybe we can trust most prosecutors, but we shoudln't have ot trust any of them. We should instead limit the discretion they can use by narrowly drafting the laws. Your examples are akin to saying a cop or prosecutor can decide which drunk driver to arrest and prosecute. Here, the risk is that a proscutor can decide on his own, using the same statute, whether to go after a child pornographer or an archivist. I doubt anyone here supports child pornography, but I do nto support laws I consider vaguely drafted.

Moreover, the review of the satute that you conside to be hopelessly out of touch with the times is one of the very democratic reviews you urge as a safeguard.

[Levin]

Now I'll respond specifically to the child pornography case pending before the Supreme Court:

The statute prohibits advertising, promoting, presenting, distributing or soliciting material in a manner that reflects the belief, or is intended to cause another to believe, that the material is illegal child pornography.

It is being challenged under the 1A for being overly broad and impermissibly vague b/c it criminalizes behavior where actual child pornography is not being promoted or solicited. That is, the parties don't think it should apply to people who mistakenly believe what they have is child pornography or those who intend to cause others to believe that they are peddling child pornography when they in fact know that they aren't. They want to strike down the entire statute (that's how 1A works -- usually the whole statute goes if its overly broad).

First question, why should lying be constitutionally protected? That is, why should the First Amendment protect my right to lie about whether I have child pornography or not? It shouldn't and it doesn't.

But what about those people who mistakenly believe what they have is child porn (when it isn't) and they "present" it to another. "Present" is a broad term, and it probably covers my presenting to you pictures from my trip to Darfur where I took pictures of hundreds of naked children to document the suffering. And do I think they're child pornography? Well, they're of naked kids.

Now contrast that situation with a pervert who thinks he has child pornography (when he doesn't), but he mistakenly peddles it as such. Let's say that he has virtual child pornography, and he still thinks it is proscribable under the First Amendment (it isn't; Supreme Court said a few years ago that the government can't prohibit virtual child pornography, even though the digital characters are virtually indistinguishable from real kids: sick opinion). Now, do you think that guy should go free?

This is where prosecutorial discretion comes in, just like it does every day with every other statute or law enforcement decision. I'd rather rely on the discretion of the cops to bust virtual child pornographer, but not Sudanese do-gooder, than to wipe a crucial statute off the books for battling child pornography.

That's the choice: wipe the statute off the books, stripping law enforcement of a crucial tool, or rely on discretion in those marginal cases. And you know what: if a prosecutor ever did decide to charge Sudanese do-gooder or Lolita reader, you better believe the democratic process would whip up in a fury.

Our system works better than you think, Waters and Creekster. You provided an example: the photographer from your story wasn't charged, and the photogs had a talk about it; they're now well-informed to take it public next time it happens.

[Levin]

And of course the statute isn't even being applied against the ignorant virtual pornographer; it's being applied, like most federal statutes, against the really bad guys and gals.

[Levin]

Originally Posted by creekster

We should instead limit the discretion they can use by narrowly drafting the laws.

This issue is tricky in criminal law: they have to be specific enough so that I know what is against the law before hand (due process), but they don't want it so narrow that they miss a lot of bad actors.

Reality is against your wish, Creekster. Take a look at the federal criminal code: talk about broadly worded statutes. But I know, that's just a descriptive claim that has nothing to do with your argument that laws schould be narrowly drafted. I agree they should be, but with child porn, I'll go for the more loosely drafted in order to catch more of the bad actors.

[MikeWaters]

Originally Posted by Levin

Now I'll respond specifically to the child pornography case pending before the Supreme Court:

The statute prohibits advertising, promoting, presenting, distributing or soliciting material in a manner that reflects the belief, or is intended to cause another to believe, that the material is illegal child pornography.

It is being challenged under the 1A for being overly broad and impermissibly vague b/c it criminalizes behavior where actual child pornography is not being promoted or solicited. That is, the parties don't think it should apply to people who mistakenly believe what they have is child pornography or those who intend to cause others to believe that they are peddling child pornography when they in fact know that they aren't. They want to strike down the entire statute (that's how 1A works -- usually the whole statute goes if its overly broad).

First question, why should lying be constitutionally protected? That is, why should the First Amendment protect my right to lie about whether I have child pornography or not? It shouldn't and it doesn't.

But what about those people who mistakenly believe what they have is child porn (when it isn't) and they "present" it to another. "Present" is a broad term, and it probably covers my presenting to you pictures from my trip to Darfur where I took pictures of hundreds of naked children to document the suffering. And do I think they're child pornography? Well, they're of naked kids.

Now contrast that situation with a pervert who thinks he has child pornography (when he doesn't), but he mistakenly peddles it as such. Let's say that he has virtual child pornography, and he still thinks it is proscribable under the First Amendment (it isn't; Supreme Court said a few years ago that the government can't prohibit virtual child pornography, even though the digital characters are virtually indistinguishable from real kids: sick opinion). Now, do you think that guy should go free?

This is where prosecutorial discretion comes in, just like it does every day with every other statute or law enforcement decision. I'd rather rely on the discretion of the cops to bust virtual child pornographer, but not Sudanese do-gooder, than to wipe a crucial statute off the books for battling child pornography.

That's the choice: wipe the statute off the books, stripping law enforcement of a crucial tool, or rely on discretion in those marginal cases. And you know what: if a prosecutor ever did decide to charge Sudanese do-gooder or Lolita reader, you better believe the democratic process would whip up in a fury.

Our system works better than you think, Waters and Creekster. You provided an example: the photographer from your story wasn't charged, and the photogs had a talk about it; they're now well-informed to take it public next time it happens.

you sound like Bush and wireless eavesdropping. "If you get rid of my law, then the terrorists win." It's a false choice.

The photographer was ruined. He was front page news in the paper and the leading story on local TV.

I'm guessing you have never been harassed by police or other authorities.

Creekster's point was best: you say there are plenty of safeguards while at the same time criticizing the Supreme Court and its review process. That is the height of irony.