Rise of the Carceral Left, John Grisham Edition

Mega-author
John Grisham was recently interviewed by The
Telegraph’s Peter Foster, and the topic turned to
overincarceration in America. Grisham—best known for producing the
paperbacks your dad reads on vacation and every
plucky-young-lawyer-rights-wrong movie of the past two decades
(The Firm, A Time to Kill, The Pelican
Brief…)—has a history of advocacy on this front, and the
whole conversation would be pretty unremarkable had Grisham not
veered into talking about sex crimes and child
pornography. 

“We have prisons now filled with guys my age. Sixty-year-old
white men in prison who’ve never harmed anybody, would never touch
a child,” he said in an exclusive interview to promote his latest
novel Gray Mountain which is published next week. “But
they got online one night and started surfing around, probably had
too much to drink or whatever, and pushed the wrong buttons, went
too far and got into child porn.”

Grisham goes on to talk of a “good buddy from law school” who
went to prison for three years after downloading porn featuring
16-year-olds*: 

“His drinking was out of control, and he went to a website. It
was labelled ‘sixteen year old wannabee hookers or something like
that’. … He shouldn’t ’a done it. It was stupid, but it
wasn’t 10-year-old boys. He didn’t touch anything. And God, a week
later there was a knock on the door: ‘FBI!’ and it was sting set up
by the Royal Canadian Mounted Police to catch people—sex
offenders—and he went to prison for three years.”

You can probably guess how the online progressivesphere
reacted.

Now granted, Grisham’s assessment of the problem here comes
across a bit like someone’s drunk uncle at a wedding conversation
you don’t want to be in. “Grisham certainly could have chosen his
words better,” as Radley Balko wrote in
a wonderful analysis of this Grishamgate at The
Washington Post. “But he isn’t wrong, and the invective he’s
receiving right now is both misinformed and wildly over the top.
There are Twitter users calling him a pervert, or for his home to
be raided by the FBI.”

Exemplifying the critiques is this Think
Progress piece from Jessica Goldstein. Right away
Goldstein makes it a matter of who the “real victims” are, painting
herself as the champion of sexually-exploited children and Grisham
as singing sympathy for child abusers. Nevermind that Grisham said
nothing of the sort; merely suggesting that mandatory minimums for
those who view child porn are unwise was enough for a sharpshooter
like Goldstein to intuit his pro-kiddie porn stance.

After setting up this false dichotomy—you are either for all
of our current criminal justice policies concerning child porn
(no matter how ineffectual or unfair) or you’re indifferent to the
suffering of child victims, you monster—Goldstein mocks “Grisham’s
concern for the 60-year-old men,” adding: 

Because that’s definitely the problem with our prisons: they are
overrun with middle-aged white dudes, serving time for
insignificant non-crimes. Not black men who were busted with
marijuana, no siree.

Why is it contest? Can’t we care about minimizing the U.S.
police state in general? Isn’t it possible to advocate—as Grisham
does—for rolling back mandatory minimums for both aging white dudes
who look at teen porn and black teens who get caught with pot?

Grisham has already apologized
for his comments, writing on his website that, “Anyone who
harms a child for profit or pleasure, or who in any way
participates in child pornography—online or otherwise—should be
punished to the fullest extent of the law.” The man has a new book
to promote, so his backtracking is understandable. But his original
sentiments shouldn’t require an apology.

According to a 2012 report from
the U.S. Sentencing Commission, the average prison
sentence for possession of child porn was 95 months in 2010,
up from 54 months in 2004. As Reason’s Jacob
Sullum noted here in February, federal law requires a
mandatory minimum sentence of five years for “receiving child
pornography”, which could mean looking at or downloading a single
image. With enhanced criminal penalties “based on factors that are
extremely common”,  people who look at sexualized images of
minors can be punished more harshly than making and disseminating
the images or those who actually molest children. And in 30 states,
the age of sexual consent is 16, notes Balko—making it a crime to
download sexual images of a 16-year-old but not to
physically have sex with them.

Goldstein scoffs at the idea that viewing child porn online is
different than directly sexually abusing children. “If you engage
in pedophilia on the internet, you are a real pedophile,” she
writes.

But there is no way to “engage in pedophilia.” It’s
a mental disorder, defined as “an intense and recurrent sexual
interest in prepubescent children”. Because U.S. jurisprudence is
(theoretically) based on people’s actions, not their private
thoughts or desires, we have laws against things like sexually
abusing children, creating or distributing child pornography, and
selling minors into the sex trade, but not against
pedophila per se. Pedophilia alone is an illness, not
a crime.

Some pedophiles do engage in criminal acts against children, but
many don’t. Conversely, many of the people who do molest, traffic,
or make porn featuring children are not sexually attracted
to them. “In fact, research shows, about half of all child
molesters are not sexually attracted to their
victims,” according
to law professor Margo Kaplan in The New York
Times.

Putting definitions aside, Goldstein is suggesting that
viewing child porn online is morally equivalent to
making child porn or personally physically molesting
children. She keeps coming back to how a hypothetical victim would
feel once they were older, knowing that “images of you, of
underage, naked you, are circulating the internet as you try to go
about your life and there is nothing you can do.” People who look
at these images are contributing to the victim’s pain, she
admonishes.  

But while the victim scenarios Goldstein conjures and relays are
horrific and heart-wrenching, how is the solution possibly to
get tougher on people who had no contact with these children and
nothing to do with producing these images? In what way does
that make anyone safer? The solution to all of our social ills
can’t simply be to keep casting wider and deeper prison nets.

“There is no legal difference between looking
at pornography of a 16-year-old and looking at pornography of a
10-year-old,” writes Goldstein (emphasis mine). True, and yet: the
absence of this legal difference doesn’t make 16-year-olds in fact
equivalent to 10-year-olds. The absence of this legal difference
currently isn’t something we must take as now-unchangeable. The
absence of this legal difference is, in part, what Grisham was
railing against. 

It may be wise to have a cultural norm against lusting after
teenagers as a grown person, but is it really the same thing to
look at sexualized images of 16-year-olds and those of 6-year-olds?
Probably not. And pretending it is—and crafting criminal justice
policies as if it is—doesn’t make any children any more safe from
the people that are actually interested in harming children.

Yet responses like Goldstein’s point to larger trend:
the rise of the carceral left. Or call it the illiberal left,
as Conor
Friedersdorf did at The Atlantic yesterday. When it
comes to eradicating Really Bad Things, these folks deftly
demonstrate the true difference between being “liberal” and
“progressive”.

To them, demonstrating that you find child porn morally
reprehensible requires giving zero fucks about things like due
process or America’s monstrous prison industrial complex or the
social and economic costs of it all. Same goes when the issue at
hand is sexual assault, bigotry, homophobia, or domestic violence.
What are a few false rape convictions if it makes men
more likely to embrace affirmative consent standards? Why
not add an extra few years prison time because an assailant was
motivated by racial animus?

It’s maddening, and it’s making things worse for the very groups
of people progressives claim to to be helping (in addition to, you
know, everyone). As Freddie
de Boer wrote recently, the burden of increased state
power “will inevitably fall on the poor and the black, because that
is who the white police state prosecutes with greater zeal than any
other.” This is the reality of our criminal justice
system. 

“Let’s talk about the prison state we have and not the one you
wish we have,” de Boer implores carceral leftists. “Let’s talk
about this America and not the one that you’ve invented. Because in
this America, we know what happens when you give prosecutors and
police greater license.” 

Progressives are able to see our criminal justice system as
intolerant, corrupt, and overreaching when it comes to things like
the drug war—and yet they cling to the belief that somehow this
same criminal justice system is totally capable of handling other
issues fairly. They look at a prison system that may be bloated,
racially biased, and rife with abuse and say, but if we just
expanded it in the right ways….

It’s genuinely strange, and possibly dangerous. “If illiberal
attitudes prevail … the consequences will be dire for all
victimized innocents, and for particular classes especially,”
writes Friedersdorf. But I kind of hope these progressives keep it
up. The more willing they are to expose their true colors, the
easier it is to challenge the idea that they differ at all from the
authority-loving, Constitution-indifferent social-conservatives
they used to decry. 

* It turns out that Grisham was wrong about his friend, who
was—The Telegraph later discovered— actually arrested
for possessing “13 images, all of children under 18, some
under 12.” But as far as we know Grisham did not know did—and those
lampooning him over the past few days certainly didn’t;
and the particulars of this friend’s case are not
really the point.