Monday, December 14, 2009

Perverse Justice

When I made the shift from state to federal criminal defense practice, it seemed to me that the leitmotif of the cases passing through our office, which were mostly drug cases, was this: dude gets pulled over for speeding (sometimes flagrantly) or some other minor traffic violation, gives consent to search the car, and the cops recover a large amount of cocaine/crack/meth (pick your poison). That always seemed weird to me, as you’d expect folks hauling around contraband to pay particular attention to things like traffic laws. Smuggling is all about evasion, after all.*

Nowadays there’s another theme developing in case after case: dude chats online with someone he things is a 13-year old boy/girl, they arrange to meet, only for dude to discover that the kid is, in fact, an undercover cop of some flavor. Long prison sentences and a sex offender designation ensue.

All of which is my way of introducing a fascinating article from this month’s issue of Vanity Fair. Written by Mark Bowden (of Black Hawk Down fame), it explores the issue of police stings in cyberspace, focusing on a roving hoard of virtual child molesters which, in all actuality, doesn’t exist. In the process, guys guilty of nothing more than bad taste and weird kinks are being swept up in the national hysteria about sex offenders and paying a serious price because of it.

The article tracks one case, in which a Philadelphia area police officer, posing as a mother of two offering her daughters for sex in various chat rooms, baits the hook and lands J, who eventually agrees to meet up with “mom” and the kids in the real world. Along the way, Bowden takes down some of the myths about sex offenders in cyberspace. For example, he cites the Center for Missing & Exploited Children’s well traveled statistic that 1 in 5 (later revised to 1 in 7) children have been solicited for sex online. An alarming statistic:

Until you look closer. The actual question posed in the department’s “Youth Internet Safety” survey asked teenagers under 17 if they had received an “unwanted sexual solicitation,” which was defined as follows: “a request to engage in sexual activities or sexual talk or give personal sexual information that was unwanted or, whether wanted or not, made by an adult.” Since “adult” in this case was defined as anyone 17 or older, the definition included many would-be high-school Romeos, predators of a highly conventional and not particularly dangerous sort, and also took in a strain of intimate gossip familiar to all teenage girls. As the study’s authors themselves noted, half the solicitations came from other teenagers. Not a single solicitation led to actual sexual contact. Violent sexual predators hunting children are out there, as they have always been, yet they remain blessedly rare, and most young people flee such strangeness instinctively. Only 3 percent of the contacts reported in the survey resembled the one most feared by parents, the adult stranger attempting to seduce a child.
The use, or rather misuse, of numbers like that one – along with the unsourced claim that 50,000 predators are online and trolling at any moment – have fuelled a crackdown on Internet sex crimes. Child pornography sentences, particularly for federal offenses, have ballooned over the past few years, to the point that a good number of judges are balking at them. And as Bowden writes, other problems arise:
Yet the more numerous aggressors may be the police. Three researchers at the University of New Hampshire reported earlier this year that during the period between 2000 and 2006, when Internet use by juveniles grew between 73 and 93 percent, the number of people arrested for soliciting sex online from them grew only 21 percent, from 508 to 615. The number of people arrested for soliciting sex from undercover police like Deery, however, rose 381 percent during the same period. In other words, alleged child-molesters like J are many, many times more likely to be locked up for approaching detectives than children. And despite this full-court press on Internet child predation, those arrested for it represent only 1 percent of all arrests for sex crimes against children and adolescents.
Bowden does not argue, nor do I, that there are no honest to goodness predators on the Internet. Of course there are. But they don’t seem to be as omnipresent as law enforcement would have you suggest. And the back and forth between J and the cop who snared him makes a good case for moral, if not legal, entrapment. Granted, J’s defense of “it was all a fantasy, I wasn’t going to do anything do the kids” has to be taken with a grain of salt, coming as it did after he was arrested. But what if he was telling the truth? The current climate doesn’t really care. Read the whole article and decide for yourself.

Point being, in a world of precious law enforcement resources and bulging prisons, doesn’t it make sense to rethink our priorities? Shouldn’t we focus on, oh, I don’t know, the people who actually hurt kids instead of those who get talked into it by overzealous cops?

* Note: The cynic in me is very aware of the possibility that said minor traffic violations are post hoc rationalizations for stops like those. Nonetheless, try and prove that in a suppression hearing.

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