Don’t Try This At Home

Via Doug Berman, a Lexington, Kentucky man was sentenced to 15 years for possession of massive quantities of child pornography. In addition, his home was forfeited.  From the Lexington Herald-Leader :

Joseph Robert Leitner, 62, pleaded guilty in June to one charge of receiving child pornography. He admitted collecting child pornography for years and had computers and CDs that contained more than 30,000 images of child pornography, some involving children as young as 6, according to his plea agreement. There were approximately 100 CDs and several computers seized during the search of Leitner’s residence in June 2008.

Let’s be clear.  The conduct involves is sickening.  If ever the rationale that the perverts who obtain kiddie porn provide the impetus for those who create it and are deserving of severe punishment as deterrence, it applies here.  I have no sympathy for Leitner.  I wouldn’t defend Leitner.  I’m extremely happy that they found him, prosecuted him and that he will be removed from society for a lengthy period of time. 

Additional claims were made of Leitner having molested children years ago, one as young as 3.  I hope his new friends in prison know about these claims. 

But that wasn’t where the punishment ended.

The federal government will also seize Leitner’s home at 417 Cochran Road because of the high volume of images and the length of time Leitner used his home to download and view child pornography.

Assistant U.S. Attorney Hydee R. Hawkins, who prosecuted Leitner, said the sentence sends a message to child predators that “we are going to take the very place you used to exploit children.”
Given how I view the crimes involved here, it might be surprising that I’m not in favor of any and every punishment that could conceivably be imposed.  Indeed, harming children brings up images of the proper application of the Iron Maiden in the back of my mind.  It’s an offense I find intolerable, and punishments that I would never otherwise consider suddenly make much more sense.

While I don’t exactly feel badly for Leitner at the loss of his Chevy Chase home, it’s enormously troubling because of its lack of any rational connection to the offense.  If they can do it here, and the “very place. . . used to exploit children” rationale is allowed to prevail, then nothing is safe from forfeiture.  That the game starts with someone like Leitner doesn’t mean it ends there.  The slippery rationale has the potential to slide right down the slope to any offense.

True, he viewed his computer in his home.  He stored the CDs with thousand of images, enough to make a normal person vomit forever, in his home.  There is, at the most superficial level, a connection between the home and the offense.  But that’s not the issue, and it shouldn’t be the issue. 

Forfeiture is authorized for two categories of assets: the proceeds of a crime and the instrumentality of a crime.  Leitner’s home obviously wasn’t the proceeds of a crime, leaving only the instrumentality theory to apply.  In this regard, it means that the property was instrumental in accomplishing a goal necessary for the commission of the crime.  It must be integrally related to the crime itself, a tool needed for the crime to occur. 

As the AUSA stated, the connection between the crime and Leitner’s home was that it was the “very place” used to keep and view the child pornography.  The validity of this arguments is little different than denying Leitner air by arguing that it was the “very air” he breathed as he viewed this horrific images.  The argument is rhetorical, and can be said about any item of physical property that can be theoretically connected to the life of a defendant.  What about the “very clothes” he wore as he looked at these images? All true, but not at all instrumental.

Fear forfeiture.  It’s almost invariably a penalty disproportionate to crime, aside from its methodology that denies it being a penalty at all and depriving the facial owner the basic rights necessary to challenge it.  It’s just a total nightmare from a due process perspective, and possibly the most offensive abuse of the law that Congress has dreamed up.  This much is a constant. 

But fear forfeiture when it strays beyond the instrumentality even more.  When this becomes acceptable, there is no limit to what the government can do to, and take from, anyone.  And don’t be surprised when the over-reaching occurs in a case as heinous as Leitner’s.  It’s always easier to make the leap to irrational application in the ugly, horrible case, with the least sympathetic of defendants. 

It’s not about feeling that Leitner doesn’t deserve to lose his home.  It’s about the next guy, whose offense has nothing to do with child pornography, whose home will be forfeited with no greater justification than here.  Screw Leitner, but fear forfeiture.

4 thoughts on “Don’t Try This At Home

  1. John Kindley

    Lord knows I don’t want to come across as an apologist for pedophiles, but I’ve never quite understood why possession of child pornography is considered one of the most heinous of crimes, relative to say, actual child molesting. (This very reluctance on the part of legislators to come across as soft on pedophiles undoubtedly contributes to the one-way ratchet favoring ever harsher penalties.) There is the whole thing about consumers of such vile material creating the market for the production of such vile material, but I don’t know that that’s necessarily part of the conscious thought processes of people who possess child pornography. In this respect, whether the person pays someone for the material would seem to be relevant.

    What of all the people who, maybe against their better judgment, viewed on the internet the video of the beheading of Daniel Berg, and were appropriately horrified and maybe even terrified? Wasn’t this the very purpose of the terrorists, and didn’t the people who viewed the video in a sense create the incentive for such horrific crimes?

    Judge Weinstein in the Polizzi case seemed to think that the mandatory minimum 5 year sentence for the defendant was perhaps too harsh, and that the defendant there was basically a sick bastard, twisted by being a victim himself in childhood.

  2. SHG

    I’m unaware of anyone who thinks possession of child porn is more heinous that actually molesting a child.  On the other hand, that doesn’t separate the financial motivation of those who create child porn, and actively engage in the commission of horrific harm to children, from those sick individuals who desire such child pornography and provide the market that generates its creation. 

    Without the back end market, there would be call for the front end creation.  It may not mean the end of molestation of children, but would likely result in a tremendous reduction of child porn, abduction, rape, etc.  To tell you the truth, while I am usually willing to accept the premise that some defendants are simply sick and pathetic people, I reject that when it comes to doing harm to children.  When children are harmed, my concern for adult sickness is lost.

  3. Gary Carson

    Last summer I had some heart surgery and my grass didn’t get cut for a few weeks. The city gave me a citation (there are criminal penalties for letting your grass get to high). It was dismissed after the city prosecutor found out I’d been in the hospital but under this legal theory they could have taken my house because I didn’t cut the grass for a month.

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