Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses

Abstract

Federal prosecution of individuals for possessing child pornography has risen steadily and dramatically over the last twenty years. As the number of prosecutions has increased, so have the penalties. Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence. The article considers whether such sentences are just, fair and proportionate. To answer this question, the article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished. The article argues that while the possession of child pornography by a large group of persons in aggregate creates significant social harm – for example, a robust market for the production of child pornography – individual acts of possession, considered at the margin, have only a trivial impact. This raises a serious problem of disproportionality in punishment for retributivists. The article attempts to solve this problem by developing a theory of aggregate harm offenses. According to this theory, even acts that have little marginal impact may constitute serious moral wrongs insofar as they violate the principle of rule consequentialism. Rule consequentialism requires acting pursuant to a rule with desirable social consequences. The article develops a rationale for rule consequentialism and explores how rule consequentialist norms may be used to justify and explain not only child pornography possession laws, but also a broad group of superficially unrelated criminal offenses.

Keywords: child pornography, proportionality, punishment, rule consequentialism