While I too would prefer not to jail individuals for mere possession of extreme or child pornography, I can’t accept your rationale. First, there are other theories of punishment other than retribution. An advocate of such regulations might argue that they serve a utilitarian purpose, such as being a general deterrence to those who do commit violent crimes or crimes against children. It’s up to you whether you think that incarcerating one person for a lesser crime to deter another from committing a greater one is a convincing rationale. However, to say that there is no plausible rationale seems inaccurate.

Second, people are convicted for future crimes all the time (e.g. incomplete act attempt). Those prosecutions turn on whether an actor’s actions constitute enough of a substantial step to corroborate criminal purpose, but the actor has not actually committed the criminalized act. Would we be more comfortable with prosecutions for attempted acts of child molestation, where a jury would determine if the defendant’s possession of child pornography indicated her intent to molest children? What if conviction for attempted child molestation had the same jail time as actual child molestation? And what if that conviction was simply based on a puritanical jury’s views of child pornography?

Not only do we convict people for future crimes, we convict people who have attempted to commit crimes and failed (e.g. completed act attempt).

For me, the issue is not the reasoning behind the laws, but that law makers think that it is appropriate to be peering into what I do inside my home at all. Whether it is pornography or drugs or what have you, I would like to maintain my own little fiefdom in which I can do what I want without fear of prosecution.

Additionally, isn’t the categorization of a photograph contextual? Is a photograph of a half naked boy with a cigarette in his mouth child pornography? What if it is later revealed to be taken in Afghanistan by a war photographer? What if it was taken from the war photographer’s website and reproduced on a pornographic website?

[sorry, didn’t mean to ramble...]

-- JoshS - 07 Sep 2008