Young people have always done stupid things and will continue do so. Take the tragic case of this young couple where a young man died after asking his partner to shoot him the chest. He had been holding a thick book up in front of him in the belief that it would shield him from the bullet. Why did he take such a stupid risk? Because the couple wanted to “increase their social media following” on YouTube and become famous.
Or take the sad case of Otto Warmbier, the student who was jailed in North Korea for 15 years for allegedly stealing a propaganda poster in his hotel. After being in prison for about 18 months, he went into a coma and died just days after his return to the US. Warmbier should have realized that North Korea is not a country that takes stupid pranks lightly. While the circumstances of his death remain murky, what is clear is that his offense deserved at most a slap on the wrist, not severe jail time.
That is why we should be extremely cautious about criminalizing and severely punishing acts that young people are likely to indulge in because they will do them anyway, ignoring the risks. But our own legislators seem to think otherwise and have put in place severe punishments, especially for acts involving sex. The latest effort comes with a bill passed by the US House of Representatives that, while having the laudable goal of tackling child pornography, could end up sending teenagers to jail for up to 15 years for ‘sexting’, the term used to describe the act of exchanging sexually explicit pictures of themselves to others.
Teens who text each other explicit images could be subject to 15 years in federal prison under a new bill that just passed the House of Representatives. Rep. Sheila Jackson Lee (D-Texas), ranking member of the House Judiciary Subcommittee on Crime, has called the measure “deadly and counterproductive.”
“While the bill is well intended, it is overbroad in scope and will punish the very people it indicates it is designed to protect: our children,” Lee said during a House floor debate over the bill. The bill would also raise “new constitutional concerns” and “exacerbate overwhelming concerns with the unfair and unjust mandatory minimum sentencing that contributes to the overcriminalization of juveniles and mass incarceration generally.”
Introduced by Rep. Mike Johnson (R-Louisiana) in March, the “Protecting Against Child Exploitation Act of 2017” passed the House by an overwhelming majority last week. Only two Republicans—Reps. Justin Amash of Michigan and Thomas Massie of Kentucky—voted against the bill, along with 53 Democrats.
“While we all agree that no child pornography offense should go unpunished, we cannot overlook the consequences of mandatory minimum sentencing,” said Conyers on the House floor. Under current U.S. law, first-time offenses for child porn are punishable by mandatory imprisonment of at least 15 years, with repeat offenders subject to 25- and 35-year minimums. “By modifying and expanding [federal law] to include several new ways in which to violate the prohibition against the production of child pornography, the bill would subject new classes of defendants to mandatory minimum sentences,” he explained.
Supporters of the legislation said there’s no reason to think that federal prosecutors will use the bill against teen sexters, since they have not done so in the past. But state prosecutors have. And we’re also up against a new federal administration—one that has explicitly endorsed mandatory minimums and other tough-on-crime endeavors. So, no, the FBI probably isn’t about to start rounding up teen sexters in mass. But what will happen the next time ICE finds a racy image on a 17-year-old Mexican immigrant’s phone?
The idea that one should give widespread, strong, and sweeping powers to law enforcement and that they can be trusted to only use it against a very select few of serious offenders is always a mistake. Governments will always use whatever powers they have to their maximum advantage and the people swept up by these laws will be the poor and marginalized who do not have the resources to fight back.