OPEN LETTER TO THE U.S. SENTENCING COMMISSION: PLEASE DO NOT UNRAVEL THE
LEGISLATIVE WILL REGARDING UNLAWFUL IMAGES

----------------------------------------------------------------------------------------------------------------------

September 30, 2009

United States Sentencing Commission
Office of Public Affairs
One Columbus Circle NE
Washington, DC. 20002-8002

RE:
PLEASE DO NOT SOFTEN PENALTIES FOR UNLAWFUL IMAGES: JUDGES UNRAVELING THE
LEGISLATIVE WILL AGAINST CHILD PORNOGRAPHY

Dear Sentencing Commission,

I solemnly read a news report that began with the following troubling headline: Sentences for
Possession of Child Porn May Be Too High, Judges Say (1). The story described a recent meeting of
the U.S. Sentencing Commission where judges advocated softening sentences for possessors of child
pornography.

Not in attendance and sadly unrepresented at the commission meeting were thousands of anonymous
victims of child sexual abuse whose tortured images and videos are being traded as you read this, by
pedophiles, sex offenders, and the criminally sexually curious.

As a law enforcement officer, having supervised thousands of investigations into unlawful images over
the past ten years, it is disheartening to see some in the judiciary attempting to unravel years of
progressive legislation against this disturbing form of child abuse.

Normally I am reticent to contradict judges because I am only a humble policeman, dutifully aware that
judge-liness is next to godliness in the justice system but I must herein rebut some of the
misinformation from the report for the purpose of informing those in the judiciary who do not deal with
this subject on a regular basis. Opinions expressed herein are personal and do not represent the
thoughts of any government agency.

According to the report, one judge said that he;

    "...doesn't condone possession of child pornography or understand it, but focused on the
    unfairness of treating one person sitting in his basement receiving videos over the Internet the
    same as a commercial purveyor of child pornography."

ESCALATING OFFENSES - FROM BASEMENT TO ABOMINATION

Former criminal profiler John Douglas described the relationship between pornographic images and
sex offenders. He said, "With most sexually based killers, it is a several-step escalation from the fantasy
to the reality, often fueled by pornography, morbid experimentation on animals, and cruelty to peers (2)."
Here in Arizona, my colleagues and I saw the beginning of this progression in a recent investigation
where an offender admitted that he no longer enjoys lawful adult pornography and that he now must
use child pornography to gratify himself.

Sometimes, experts say, the offender emerges from the proverbial basement described by the judge,
emboldened by what he has seen and then, like an enthusiastic but twisted movie-goer emulating an
on-screen hero, endeavors to re-enact the horrible video somewhere in real life. Dr. Chris Hatcher,
Professor of Psychology at the University of California said, "It begins with fantasy, moves to gratification
through pornography, then voyeurism, and finally, to contact (3)."

IMAGE-FUELED OFFENDERS' CASE STUDIES

After one child pornography-fueled murder, software developer Michael Brier admitted that viewing child
pornography made him long for the sex acts that led to him kidnapping, murdering and dismembering
ten year old Holly Jones in Toronto in 2003. Brier is now in prison and little Holly is gone forever (4).
Serial killer Arthur Gary Bishop was similarly fueled by child pornography. The child pornography addict
killed five boys in Utah before being caught and executed in 1988 (5).

OFFENDERS RISK ASSESSMENT

Pursuant to my work with the Arizona Internet Crimes Against Children Task Force I am beginning to
understand the crimes and the offenders. My training and experience suggests that a significant
number of possessors of unlawful images are also undiscovered "hands-on" contact offenders. Formal
academic research indicates that there may be a correlation between those who possess child
pornography and those who are also “hands-on” contact offenders. A surprising study of federal
prisoners indicated that 85% of those in custody for possession of unlawful images were also “hands-
on” molesters whose contact offenses had never been discovered (6).

In landmark research (7), psychiatrists Bourke and Hernandez compared two groups of child
pornography offenders participating in a voluntary prison treatment program. The goal was to determine
whether the possessors were collectors of child pornography at little risk of engaging in hands-on
sexual offenses, or if they were contact sex offenders whose criminal sexual behavior involving children
went undetected. The research found that Internet offenders were significantly more likely than not to
have sexually abused a child via a hands-on act. The findings were apparently so shocking to the prison
rehabilitation project that the Federal Bureau of Prisons tried to prevent the release of the surprising
study.

Doctors Bourke and Hernandez concluded their report by saying:

    • In fact, if it had not been for their online criminality, these offenders may not otherwise have
    come to the attention of law enforcement.

    • Upon being discovered, these offenders tend to minimize their behavior. They may attribute
    their search for child pornography to "curiosity" or similar benign motivation. They may "accept
    responsibility" only for those behaviors that are already known to law enforcement, but hide any
    contact sexual crimes to avoid prosecution for these offenses, or to avoid the shame and
    humiliation that would result from revealing their deviance to family, friends, and community.

    • Only later do the majority of sex offenders who enter treatment acknowledge that they were not,
    as they initially claimed, merely interested in sexual images involving children; they were (and
    are) sexually aroused by children.

    • Further...it appears that the manifestations of their deviant sexual arousal was not limited to
    fantasy. Rather, when an opportunity arose (either incidentally or as a result of planned,
    predatory efforts), many offenders molested or raped children, and engaged in a variety of other
    sexually deviant behaviors.

    • Results of the study suggest...that many Internet child pornography offenders may be
    undetected child molesters, and that their use of child pornography is indicative of their
    paraphilic orientation.

IMAGES - VIDEO WITH SOUND

Unlawful images are an unusual type of evidence because the images themselves are contraband and
cannot be released for public viewing. Images are the only form of contraband introduced to the human
brain through the sense of sight. When described in text the dispassionate details of unlawful images
use sanitized statutory legalese to explain the sex acts. The pedantic written accounts of the images
and videos can never fully explain the abominations suffered by the victims nor can a written description
reproduce the shocking sounds of sexual violence.

EMPATHY, SYMPATHY AND VICTIM REALITY - CHILDREN ARE CITIZENS AND HUMANS

Existing tough penalties against unlawful images were earned at the expense of tiny human victims
whose voices are heard on secretive videos trafficked and traded by criminal pedophiles and other
sexual deviants. Some of us in law enforcement have seen the violations and heard the victims' cries.
They plead, "No! No!" while being penetrated by men and sometimes animals. Some of the infant
victims are so young that they cannot yet formulate words, only scream in pain. I could further describe
the exact details of the abuses but I know that I would lose this reading audience. These are not "baby-
in-the-bathtub" images.

If, as you read this, you find descriptions of sexual abuse emotionally troubling it means that you are
probably normal. Now consider those who view images of child abuse and find them sexually gratifying.
Those who possess or purvey child pornography are criminally abnormal.

Those who would soften the penalties against unlawful images dishonor the young victims of horrific
sex crimes. Victims who cannot appear at sentencing commission hearings. Children who become
political afterthoughts because they do not make financial contributions to political campaigns and who
do not vote. Babies who cannot organize and hire influential lobbyists to represent them before
legislators. Minors who are the mute and powerless constituents of well-intentioned elected officials
who are often unwittingly blind to their victimization.

MEDIA AND THE PUBLIC PSYCHE

Sex crimes against children are sometimes so horrible that the news media is unable to fully describe
the incidents. The public psyche abhors reporting of sex crimes against children. Television and print
reporters only discuss the sanitized version of events. News producers cannot permit too much time
spent describing the crimes because audiences will switch channels in disgust. Hollywood does not
focus on the subject because no audience can stomach it.

OFFENDERS, THE PUBLIC AND LAW ENFORCEMENT

In the book Child Molesters: A Behavioral Analysis (8) former investigator Ken Lanning discussed
crimes against children. He said that most people wish to disassociate themselves mentally from
thoughts of abuse involving children. Law-enforcement investigators must deal with the fact that the
identification, investigation, and prosecution of child molesters may not be welcomed by their
communities—especially if the molester is a prominent person. Individuals may protest, and
community organizations may rally to the support of the offender and even attack the victims. City
officials may apply pressure to halt or cover up the investigation. Many law-enforcement supervisors,
prosecutors, judges, and juries cannot or do not want to deal with the details of deviant sexual behavior.
They will do almost anything to avoid these cases.

OFFENDERS: PUBLIC DR. JEKYLL AND PRIVATE MR. HYDE

Pre-sentence reports to the court about the offenders in these cases are sometimes a joke. I know from
training and experience that some offenders are adept at creating public personas’ as trustworthy and
demure individuals while privately they are sexually deviant predators, waiting for an opportunity to
strike. They may present to the court as socially awkward simpletons. Once caught they often feign
religious transformations and plead for mercy from the court while privately mocking the justice system
as the re-offend.

Offenders sometimes practice techniques enabling them to thwart polygraph and penile
plesthysmograph tests. Dubious "12-step" pornography addiction treatment programs have sprung up
because the psychological community has no proven method of rehabilitating some sex offenders. As
the Latin proverb states: Pardus maculas non deponit - a leopard does not change his spots.

In court, offenders are seldom charged with each and every terrible image or video in their voluminous
illegal collections and most plead to reduced charges based on just a few images. Consequently
judges never fully review all of the evidence.

POLICING THE IMAGES

Crimes against children are the most reviled types of investigations for most law enforcement officers.
While respectful of the need to bring offenders to justice many officers say, “I could never work those
kinds of crimes.” Although it is highly rewarding to capture the offenders, the true details about the
sexual victimization of minors is so psychologically distressing that few cops can emotionally tolerate
being deeply involved in the investigations. Viewing the images and videos is troubling. The victims of
unlawful images include those who must view the images in the course of their law enforcement
duties (9).

PROSECUTION

Pressured by defense arguments that defendants are really good and solid citizens prosecutors can be
worn down by the psychologically brutal nature of the crimes and the tiring nature of the system and may
offer progressively weaker pleas to offenders. One concern is that over time, those diluted pleas will
become the standardized norm, and the legislative imperative of mandatory sentencing will eventually
be abandoned.

In Arizona, the penalties on the books are some of the toughest in the country. Despite the history of
these strict penalties being upheld at the appellate level, some prosecutors are offering lighter pleas to
"attempt" possession of unlawful images thus negating the mandatory sentencing provisions intended
by legislators. The "attempt" charge avoids the mandatory sentencing provisions of Arizona law and
gives the court wide discretion to drastically lessen the period of incarceration.

JUDICIARY

It must be difficult for judges to fully apprehend the gravity of these crimes. In plea-bargained cases,
judges seldom review the troubling images or videos so they never have a full appreciation of the
entirety of the case. Having supervised hundreds of arrests and subsequent pleas involving unlawful
images, my investigators and I know of only a handful of sentences involving a judge who took the time
or had the fortitude to view the disturbing images or videos.

The commission report mentioned one judge who lumped child pornography sentences in with gun
and drug crimes and characterized the sentences for each of those crimes as being too harsh. Such
"apples vs. oranges" comparisons of crimes are predictable from the overworked ringmasters of an
assembly-line process that has become America's criminal justice system. Uninitiated courtroom
observers might compare sentencing day in some courtrooms with a fast-food restaurant order
process. I sometimes imagine the defense attorney shouting, "Hold the prison, extra probation and can
you super-size that release please, your honor!"

Judges are often offended when laws come to them with mandatory penalties. Apparently voters and
legislators are tired of the legal loopholes and sentencing reductions that keep letting criminals out of
jail to re-offend. This naturally offends those judges whose egos convince them to believe that only they
know, better than anyone else, how criminals should be penalized.

Despite progressively tougher legislative actions to properly criminalize and punish possessors of
unlawful images, some judges wish to improperly create sentencing law from the bench while
attempting to undo the enacted will of legislation.

Perhaps some overworked judges must suffer from compassion fatigue, a gradual lessening of
empathy and sympathy over time, the result of the taxing nature of showing compassion for someone
who is suffering in a situation that is continuous and irresolvable. If that is the case, I hope that judges
remember that the unlawful images situation is resolvable. The resolution is incarceration of offenders.

NOT DISPARATE SENTENCING

The report of the commission meeting also described the following tired and misleading statement that
I have grown to abhor:

    "In some cases, a person who has watched one video gets a maximum sentence that may be
    higher than someone sentenced for raping a child repeatedly over many years."

The statement is misleading hogwash for two reasons. First, no offender who is charged with unlawful
images has ever watched only one video. The offender may be charged with only one count of the many
crimes he committed, but offenders typically watch dozens, often hundreds of different videos, hundreds
of times, over weeks, months or years while simultaneously sexually gratifying themselves. Secondly,
when a person who rapes a child receives a short period of incarceration it is often because contact
offenses are much tougher to prove due to the uncommunicative nature of the young victim. Sometimes
the light sentence is offered by the prosecution as a plea bargain so that the child does not have re-live
the horror by testifying in open court. It is misleading to try to compare child pornography offenders to
rapists.

BERGER CASE STUDY

In 2003, former Arizona high school teacher Morton Berger was convicted on 20 counts of possession
of child pornography and sentenced to 200 years prison. Berger chose not to accept a plea to lesser
charges. He went to trial and lost. He appealed the sentence based on arguments of equal protection
under the law and cruel and unusual punishment. In December 2004, the conviction was affirmed by
two of the three judges of the Arizona Court of Appeals (10).

Mirroring language found in previous U.S. Supreme Court decisions, Arizona Judges Susan Ehrlich and
Philip Hall dismissed Berger's appeal with arguments including:

    • It is evident beyond the need for elaboration that a State's interest in safeguarding the physical
    and psychological well-being of a minor is compelling.

    • ...the victimization of a child continues when that act is memorialized in an image. The
    materials produced are a permanent record of the children's participation and the harm to the
    child is exacerbated by their circulation. Unfortunately, the victimization of the children involved
    does not end when the pornographer's camera is put away.

    • The legislative judgment…is that the use of children as subjects of pornographic materials is
    harmful to the physiological, emotional, and mental health of the child.

    • …the possession of child pornography drives that industry and…the production of child
    pornography will decrease if those who possess the product are punished equally with those
    who produce it.

    • ...it (the law) will decrease the production of child pornography if it penalizes those who
    possess and view the product, thereby decreasing demand.

    • …the possession of child pornography inflames the desires of child molesters, pedophiles
    and child pornographers. The State has more than a passing interest in forestalling the damage
    caused by child pornography: preventing harm to children is, without cavil, one of its most
    important interests.

    • …we cannot fault the State for attempting to stamp out this vice at all levels in the distribution
    chain.

    • Berger downloaded images from the Internet, and every time he visited a website, he
    demonstrated to the producers and sellers of child pornography that there was a demand for
    their product. Berger's demand served to drive the industry; there need not have been a direct
    monetary exchange.

    • Berger maintains also that, because his possession of the pornographic images was passive
    and because he did not use threats or violence in the commission of his crimes, his sentence is
    grossly disproportionate. This logic is abstruse. As was described by this court in Hazlett, 205
    Ariz. at 527 p. 11, 73 P. 3d at 1262, and as is evident from the violent pornographic images in
    this case,

    • Child pornography is a form of child abuse. The materials produced are a permanent record of
    the children's participation and the harm to the child is exacerbated by their circulation.

CONCLUSION

The justice system could do more at every level to address the growing problem of unlawful images.
Law enforcement agencies devote minimal personnel to investigate the crimes. Overworked
investigators have thousands of cases and only a handful of staff. Harried prosecutors with
overwhelming caseloads must arrange plea deals to avoid time-consuming trials while allowing
offenders to plead to fewer charges or lesser offenses. Strained judges misunderstand the crimes and
mischaracterize the offenders. Knowing that prisons are overcrowded, it becomes easy for judges to
convince themselves that someone who possessed pictures cannot possibly be as bad as someone
who committed robbery or rape. Such comparisons are unfair and disregard the serious nature of
unlawful images.

MESSAGE TO JUDGES

Please do not marginalize the young victims of unlawful images and do not minimize the offenses. Let
minimum sentences remain in the purview of the legislature.

Finally, Judges, when you look out over the bench and into the court gallery at sentencing time, please
imagine the seats filled with child victims quietly requesting justice; then act in accordance with the law.

Thank you for considering this letter.

Dr. Frank Kardasz
Phoenix, AZ

================================================================

NOTES

(1) Marek, L. (September 10, 2009). Sentences for Possession of Child Porn May Be Too High, Judges
Say. The National Law Journal. Retrieved September 26, 2009 from http://www.law.
com/newswire/cache/1202433693658.html

(2) Douglas, J. and Olshaker, M. (1995). Mindhunter: Inside the FBI's elite serial crime unit, New York:
Pocket Books.

(3) Hatcher, C. (1997, October). Cited in: Armagh, D.A. Safety net for the Internet: Protecting our children.
Juvenile Justice Journal (on-line) Volume V, Number 1, May 1998. Retrieved March 15, 2003. From http:
//ojjdp.ncjrs.org/jjjournal/jjjournal598/net.html

(4) CBS News online. (June 17, 2004). In Depth: Holly Jones Timeline. Retrieved September 23, 2009
from http://www.cbc.ca/news/background/jones_holly/

(5) Montaldo, Charles. (2009). Arthur Gary Bishop. About.com: Crime/Punishment. Retrieved September
26, 2009 from http://crime.about.com/od/murder/p/db_bishop.htm

(6) Hernandez, A. E. (September 26, 2006). Statement of Andres E. Hernandez before the
Subcommittee on Oversight and Investigations, Committee on Energy and Commerce. U.S. House of
Representatives. Retrieved October 20, 2007, from http://www.projectsafechildhood.
gov/HernandezTestimonyCongress.pdf

(7) Bourke, M.L. and Hernandez, A.E. (2009). The 'Butner Study' Redux: A Report of the Incidence of
Hands-on Child Victimization by Child Pornography Offenders. Journal of Family Violence, 24:183-191.
Published online: December 10, 2008.

(8) Lanning, K.V. (September, 2001). Child molesters: A behavioral analysis. National Center for
Missing and Exploited Children. 4th Ed. p. 86. Retrieved January 15, 2007 from http://www.missingkids.
com/en_US/publications/NC70.pdf

(9) Kardasz, F. (June 8, 2008). The law enforcement victims of unlawful images: Victim impact
statement. Retrieved September 26, 2009 from http://www.kardasz.org/victimimpact.html

(10) State of Arizona Division One Court of Appeals. (2004, December 14). Appeal from the Superior
court in Maricopa County. 1 CA-CR 03-0243. Retrieved October 20, 2007, from http://www.cofad1.state.
az.us/opinionfiles/CR/CR030243.pdf
Victim Impact Statement
az icac
Internet Crimes Against Children