Federal prosecutions of individuals for possessing child pornography have risen steadily and dramatically over the last twenty years. As the number of prosecutions have increased, so have the penalties. Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence. This Article considers the question of whether such sentences are just, fair, and proportionate. To answer this question, this Article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished. This 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. This 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. This 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 group of superficially unrelated offenses found in diverse areas of the criminal law.
Anthony M. Dillof,
Possession, Child Pornography, and Proportionality: Criminal Liability for Aggregate Harm Offenses,
44 Fla. St. U. L. Rev.