{"id":9036,"date":"2007-05-15T10:35:00","date_gmt":"2007-05-15T17:35:00","guid":{"rendered":"http:\/\/proteinwisdom.com\/?p=9036"},"modified":"2007-05-15T10:35:00","modified_gmt":"2007-05-15T17:35:00","slug":"judicial-nonactivism","status":"publish","type":"post","link":"https:\/\/proteinwisdom.com\/?p=9036","title":{"rendered":"Judicial (Non)Activism"},"content":{"rendered":"

From Radley Balko<\/a>:<\/p>\n

\n

In March 2004, two Florida teens—17-year-old male “J.G.W.” and 16-year-old female “A.H.,” as court records refer to them—photographed themselves engaged in sex acts.  Then they sent the pictures from A.H.’s computer to J.G.W.’s email account.  It’s not exactly clear how, but the photos soon wound up in the hands of the police.  Both teenagers were charged with producing child pornography.\n<\/p>\n

\nThe sex acts themselves were not illegal; both teens were over Florida’s age of consent.  It was the documentation<\/i> of the sex acts that was illegal, because the federal child pornography ban defines a child as anyone under 18.  In essence, they were arrested for exploiting themselves.<\/p>\n<\/blockquote>\n

—not to mention, potentially running afoul of the Commerce Clause as defined by conservatives Scalia and Kennedy.  But that’s a different matter.<\/p>\n

\n

In February 2007, Florida’s First District Court of Appeal upheld the teenager’s convictions.  Judge James Wolf explained that the two minors “ could have” sold or distributed the pictures—never mind that they didn’t.  He added that because the duo “placed the photos on a computer and then, using the Internet, transferred them to another computer,” they took a risk that other people would see the pictures, since their computer or email accounts could have been hacked.\n<\/p>\n

\nIn the most bizarre part of the opinion, Judge Wolf wrote that “if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives<\/i>” The judge didn’t say anything about what a felony child pornography conviction might do to their “careers or personal lives.”<\/p>\n<\/blockquote>\n

\nOkay. So the strained (and counterintuitive) rationale for the verdict notwithstanding—by Judge Wolf’s account, it is a potentially a crime to burn a DVD movie backup on one computer and then transfer it to another, because someone might hack in and steal it, violating copyright laws— what recourse did the Judge have, given that federal law has set the age at 18 for what it calls child pornography?\n<\/p>\n

\nIs it preferable that each state set its own ages for what constitutes child porn—bringing it in line with their age of consent for sex?  I would argue yes, but those in favor of federal statutes would likely note that, if such were the case, than the next Tracy Lords will be exploited in a state like Florida, where the age of consent is below 18. \n<\/p>\n

\nI suppose the prosecutor in the original case could have refused to prosecute the crime under the federal statute.  But I’m not sure what recourse the appeals court Judge had, given that the case was, in fact, prosecuted.\n<\/p>\n

\nThere seems to be a snare here—one in which this kids got caught up.  I’m not quite sure how to go about fixing it—perhaps the federal statute can be amended to prevent just the interstate distribution<\/i> of “pornography” featuring those who meet the requirements for consent in one state but not in another.\n<\/p>\n

\nOr better, perhaps prosecutors can avoid trying to trump up such ridiculous charges, making it impossible for a Judge who follows the law to avoid guilty verdicts in cases like these.\n<\/p>\n

\nGoing solely by Wolf’s rationale here, it may be that he had no qualms reaching the verdict he did.  But this strikes me as similar to the infamous Roberts french fry case:  the law is on the books.  If the prosecutor brings it to the judge, the judge needs to rule in line with the law.  The unintended consequences should then so outrage those who value personal liberty that they move to have the statute amended or repealed altogether.\n<\/p>\n

\nOf course, none of that does these now adults any good—though Balko doesn’t reveal what the sentence was.  It’s possible, I suppose, that they were sentenced as juveniles and their records subsequently and retroactively expunged, or that the records are sealed and will be expunged when they turn 21. \n<\/p>\n

\nStill, the problem here seems to lie with dubious prosecution, not so much with the verdict.\n<\/p>\n

\nThoughts?<\/p>\n","protected":false},"excerpt":{"rendered":"

From Radley Balko: In March 2004, two Florida teens—17-year-old male “J.G.W.” and 16-year-old female “A.H.,” as court records refer to them—photographed themselves engaged in sex acts.  Then they sent the pictures from A.H.’s computer to J.G.W.’s email account.  It’s not exactly clear how, but the photos soon wound up in the hands of the police.  Both teenagers were charged with producing child pornography. The sex acts themselves were not illegal;<\/p>\n

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