The Purpose Of Prosecutorial Discretion

I heard this story last night on NPR. It started out with a couple of cheerleaders at this high school in suburban Denver. They were goofing off and one thing leads to another and they decided to take a shower together, and used their cell phones to take pictures of themselves naked together in the shower. They didn't have sex, just being goofy teenagers. One girl says she deleted the picture and the other denies sending it to anyone, but it wound up on one of their boyfriends' phones, and he denies sending it to anyone but apparently it didn't take long before it was on the phone of pretty much every kid in the school. At some point it comes to the attention of a school administrator, who got in touch with the girls' parents. The police got involved.

That's where I started departing from the story. There were scary statistics about how one in five teenagers takes naked pictures of themselves and sends the pictures to other teens (that can't possibly be right, by the way) and the parents fretting about how this is going to follow their daughter around for the rest of her life. They didn't apologize for it but seemed to put the incident in context -- teenagers doing stupid stuff because, well, that's what teenagers do. Nevertheless, I'm going to go ahead and say that even regardless of the law (which I'll take on in the balance of the post), taking naked pictures of yourself and sending them to teenagers is a Really Bad Idea.

But I was thinking about something else by the time the reporter mentioned that the police became involved in investigating the case. I don't see a whole lot of other ways of the law dealing with a situation like this other than the rubric of child pornography. In this case, the girls who took the pictures of themselves are both the victims and the pornographers -- they created an apparently sexualized image of two underage girls. Then, everyone who got the photo and kept it on their phone is guilty of possessing that child pornography, and everyone who passed it along to their friends is guilty of distributing child pornography. Which, of course, is not only a serious set of felonies, but ones that follow people around forever because someone convicted of this crime must register as a sex offender.

So you wind up with hundreds of teenagers who are looking at multiple charges of possessing and distributing child pornography, can't get a room in the dorms when they go on to college, and are felons. It would be within the discretion of the prosecutor to charge some of the kids as adults, too -- and some of the kids will be eighteen and automatically adults. I put myself in the shoes of a prosecutor sitting down to talk with the investigating police officer -- realizing that with this information, there is a huge amount of power and responsibility to go with it. What would I do?

Well, "not prosecute a thousand teenagers for child porno" would be pretty high on my list. This doesn't seem to me to be the sort of behavior kiddie-porn laws are aimed at. Everyone knows teenagers are going to 1) fool around sexually and 2) do stupid stuff generally. What they need to be is scared, exposed to the fact that there are potential consequences for doing stupid stuff, so that hopefully they start to think about this sort of thing as they mature and don't go on to do really stupid things. But how to most effectively scare a thousand teenagers without running them through the legal system and incurring potential consequences for them and their families that are far greater than are warranted under the circumstances?

By the way, I don't know what the lesser-included charges for child pornography are. But I'd hope that if a prosecution did happen, the authorities in a case like this would opt for a more mild charge than the full kiddie-pandering that isn't really what's going on here. Obscenity, maybe? Creating a public disturbance doesn't seem to fit. There's got to be something, but I don't know what it is. Without knowing what other weapons the prosecutor has in the arsenal, it's difficult for me to think of what the right strategy might be.

You could send the detective out to arrest some of them in front of their peers -- this would scare the whole school and after they get the rumor mill working in your favor. Effective if you get it done right and then you could let the kids go later without charges. But it's too easy for a bunch of kids to misinterpret that and to fight false rumors. And then which ones do you arrest? The girls who took the pictures of themselves? Which of the thousands of kids who passed the picture on to their friends do you pick out? Do you have the kids gathered for a pep rally and arrest the whole school?

Do you just let the whole thing go? Not take any action at all? That seems like it's the wrong thing to do, too -- clearly, these kids don't have an understanding that it's not okay to do this sort of thing; they think it's fun. I suppose if I wanted to be all progressive and libertarian and stuff, I might launch into a discourse of questioning why this sort of thing is considered 'not OK' for any reason other than Puritanical uptightness about sex. And if we were talking about adults, I might just find such a discourse profitable. But we're not talking about adults, we're talking about kids, who are presumed to be not capable of understanding the full consequences of actions like these and with quite a lot of justification, given that they lack enough life experience to really appreciate what it means to have naked pictures of yourself floating around out there in the digital aether.

So do you could have the school set up an assembly and do an educational program. But how many of the kids are going to really get the message in a format like that? Not all, and probably not most. But some will. A lot will be scared and the girls will be utterly humiliated. (Well, that's not really your doing, it's theirs.) Then if you find out the picture has been passed along by a kid who was at the assembly (or should have been at the assembly), maybe you actually prosecute them.

So this is why prosecutors have discretion. At minimum, someone not directly involved in the sitaution is the one who has to decide how the legal system reacts to it. Nailing a thousand kids to the wall for the most serious possible offenses -- possession and distribution of child pornography -- would be the robotic response here. But of the many not-good responses, this is possibly the worst one to do. Which is why human beings make these kinds of decisions, not computers. Same thing with the judge handling the case -- another human being, who may have a different perspective on the matter than the prosecutor, as kind of a backstop for finding the ethical and effective response. And ultimately, it's why there are juries and all of the other procedural safeguards built in to our legal system.