2. Recommendations For The Justice System And Law Enforcement Agencies

Part: 
Three
Chapter: 
2

The effective enforcement of obscenity laws necessarily involves a concerted and responsive effort on the part of each facet of the criminal justice system. Personnel involved in each of these components must exhibit some concern and appreciation for its effect of obscene materials on a community. It is unrealistic to expect law enforcement agencies to devote the same attention to obscenity law violations that violent crimes command. This does not imply, however, that obscenity violations should be accorded the lowest priority, as it appears they are in many jurisdictions today. In order to control the flow of materials falling within the legal definition of obscenity, law enforcement officials must develop a reputation for initiating prosecution when violations are detected. Absent such enforcement policy, there is little incentive to observe existing obscenity laws. The consequences of a policy of inaction are compounded by the lucrative nature of obscenity trafficking.

The product of a successful investigation and vigorous prosecution is rendered virtually worthless if courts fail to appreciate the community significance of obscenity cases. Deterrence should be a significant factor in fashioning an appropriate sentence in these types of cases. Only public awareness of firm but fair sentencing practices in obscenity cases can foster an environment conducive to controlling the flow of these materials.

An observation common to much of the testimony heard by the Commission is that there has been a gradual relaxation over the last twenty years in the enforcement of obscenity laws. This trend is undoubtedly attributable to a number of factors, but its most conspicuous symptom was a dramatic loss of prosecutor interest in these cases. This dampened enthusiasm appears not to have been occasioned by any change in principle or philosophy, but instead was spawned by the judicial creation of insurmountable legal obstacles. In Memoirs v. Massachusetts,[82] the United States Supreme Court enunciated the requirement that material must be "utterly without redeeming social value" to be obscene.[83] This additional element of proof marked a significant departure from the pre-existing standard of proof. Prosecutors almost uniformly found this burden to be virtually impossible to satisfy[84] and as a consequence de-emphasized the regulation of obscene material.

Seven years later, in Miller v. California,[85] the Supreme Court refashioned the "social value" element of the obscenity standard and considerably eased the prosecution's burden of proof. However, according to a 1977 survey of prosecutors, the Miller standard neither increased the number of obscenity prosecutions nor the conviction rate nationally.[86] The number of jurisdictions actually prosecuting obscenity violations declined while obscene materials became more readily available.[87] It is therefore reasonable to conclude that Memoirs v. Massachusetts was only one of a number of factors contributing to the decrease in obscenity prosecutions.

Since 1973, however, the nature and extent of pornography in the United States has changed dramatically. The materials that are available today are more sexually explicit and portray more violence than those available before 1970. The production, distribution and sale of pornography has become a large, well-organized and highly profitable industry.[88] The growth of the pornography industry has been facilitated in large measure by inadequate law enforcement and prosecutorial resources in this area, and the meting out of minimal punishment to those who have been convicted of violating the obscenity laws. This relaxation of public policy has been further ingrained by the absence of any firm expression of citizen concern.

All individuals and agencies responsible for vice enforcement must be committed to giving obscenity violations adequate priority. As with any law enforcement objective, the agencies must use various criteria in determining the degree of attention the problem merits. This process requires an evaluation of the scope of the problem, the cost to the locality both in safety and economic terms and the public demand for increased enforcement efforts. The enforcement of obscenity laws must obviously be balanced against other law enforcement priorities. In some instances, this evaluation may result in a temporary realignment in enforcement attention, but most agencies will be able to effectively increase obscenity enforcement without substantially detracting from other areas of responsibility for significant periods of time.[89] Once a reputation for community intolerance is developed, officials need only perform periodic inspections.

The law enforcement community should recognize fully the magnitude of this multifaceted problem and bring into focus the means necessary to curtail it. Law enforcement agencies must examine the nature of the pornography industry within their respective jurisdictions and take steps to address the situation. Federal, state and local agencies need adequate manpower and the expertise of qualified investigators to conduct thorough investigations of obscenity law violations, especially those involving large scale pornography operations. The use of forfeiture laws to disgorge illicit profits is a potent prosecutorial tool.

The United States Department of justice should provide the leadership for a coordinated law enforcement effort through the mandate of its highest ranking officials and its ninety-four United States Attorneys. The Justice Department is able to provide valuable training and assistance to state and local prosecutors and law enforcement officials. The policies and practices of the Department of justice should lend impetus to a national reassessment of the prioritization of obscenity enforcement. Moreover, it can provide some of the impetus for legislative change.

Congress and the state legislatures must examine existing laws and enact the necessary changes to create an effective and precise means of addressing the expansive scope of the obscenity and pornography problem today.

Once an individual is charged with an obscenity violation, a United States Attorney or local district attorney should prosecute aggressively if the investigation and bringing of charges are to have any effect. This includes enforcing the existing laws and fully using other remedies particularly those laws providing forfeitures that could literally put many pornographers out of business.

Finally, when an individual is brought before the court and is convicted, the sentencing judge must have accurate and comprehensive information about the offender and the offense. The courts must impose sentences with the maximum deterrent effect and cease imposing sentences which merely increase the pornographer's cost of doing business.

The recommendations which follow attempt to accomplish these objectives.

Notes

  1. 383 U.S. (1966), p. 413.
  2. Id., p. 419.
  3. Chicago Hearing, Vol. I, Paul McGeady, p. 81; See also, Miller v. California, 413 U.S., (1973), pp. 15,22.
  4. 413 U.S., (1973), p. 15.
  5. An Empirical Inquiry Into the Effects of Miller v. California on the Control of Obscenity, 52 N.Y.U. L. Rev., (1977), pp. 810, 928.
  6. Id.

     

  7. See, the discussions of Production, Distribution and Technology of Sexually Explicit Materials found in Part Three of this Report.
  8. One witness before the Commission acknowledged the possibility of a decrease in enforcement efforts in certain areas if obscenity enforcement was given greater emphasis. "I think there is a great deal of time spent on thefts, minor thefts; and yes, they are important. But I think that obscenity has more far-reaching effects on our culture and is important." Miami Hearing, Vol. II, Barbara Hattemer, p. 96.