RECOMMENDATION 11

Part: 
Three
Chapter: 
2

The Attorney General should direct the United States Attorneys to examine the obscenity problem in their respective districts, identify offenders, initiate investigations, and begin prosecuting them without delay

If the flow of obscene material is going to be resolved through criminal prosecution, the Attorney General of the United States must take a significant, ongoing and personal role in directing a combined federal, state and local effort.

The Attorney General should direct the United States Attorneys to identify the major sources of obscene material within their districts and commence prosecutions without further delay. The United States Attorneys should contact their state and local counterparts and identify persons and organizations responsible for manufacturing and distributing obscene material in their districts. The Attorney General must also follow up on his directives and ensure compliance by the United States Attorneys.

The United States Department of justice, through guidelines contained in the United States Attorneys' Manual, places a priority on the prosecution of three types of obscenity cases: those involving large scale distributors who realize substantial incomes from multi-state operations; those where there is evidence of involvement by known organized crime figures; and those involving child pornography.[175] United States Attorneys may also increase the priority for cases involving highly offensive material or cases where obscenity is found to be a particular problem in the jurisdiction.[176]

Former Attorney General William French Smith and Assistant Attorney General Stephen S. Trott have urged the United States Attorneys to follow existing departmental guidelines and to prosecute obscenity cases aggressively. On October 4, 1982, Attorney General Smith sent a memorandum to all United States Attorneys calling attention to the guidelines and encouraging aggressive and proactive prosecution of obscenity cases.[177] Attorney General Smith also suggested using the Law Enforcement Coordinating Committees to determine the nature and extent of the obscenity problem in the individual districts.[178] Despite this directive from the Attorney General not a single indictment alleging a violation of federal obscenity laws was returned in 1983 in any district in the United States.[179]

Assistant Attorney General Trott sent an additional memorandum to the United States Attorneys on August 24, 1983, calling on them to "step up our level of enforcement" of obscenity violations.[180] Assistant Attorney General Trott again called attention to the guidelines and asked the United States Attorneys to set up a meeting with the United States Postal Inspection Service and Federal Bureau of Investigation in their districts to evaluate the need for additional enforcement.[181] He also offered assistance from the Criminal Division of the Department of justice if an individual United States Attorney needed help in structuring an enforcement program.[182]

This directive has had little effect on most federal prosecutors. The departmental guidelines have been used as "excuses" to decline prosecution of obscenity cases involving adult material. The guidelines have been perceived as establishing exclusive categories for prosecution rather than minimum criteria.

The Department's guidelines are clear and the United States Attorneys have been instructed by both the Attorney General and the head of the Criminal Division to use these guidelines to prosecute obscenity cases. A Justice Department official told the Commission in Chicago, "These are not declination guidelines, they are priority guidelines."[183]

Since the time of these directives fewer than ten federal districts[184] have brought obscenity prosecutions despite the presence of large scale distributors and organized crime involvement in their jurisdiction.[185]

There is widespread evidence that the stated policy of the Department of justice and the established guidelines are not being implemented by the United States Attorneys.[186] Very few obscenity cases have been brought by the United States Attorneys. In addition, the Department of Justice and the United States Attorneys have cited the rigorous pursuit of child pornography cases as compliance with the Attorney General's mandate and as a rationale for neglecting obscenity prosecutions.

From May 1, 1984, through July 1985, there were obscenity prosecutions in only seven of the ninety-four federal districts.[187]

There were no obscenity prosecutions in the districts encompassing the Southern District of New York (Manhattan) or the Central District of California (Los Angeles)[188] where the majority of obscene materials are now and were then being produced or distributed. [189]

One witness testified before the Commission that he contacted the office of the United States Attorney for the Central District of California in Los Angeles and requested information regarding the number of obscenity prosecutions brought by that office during the period from 1979 to 1982 along with the number of defendants involved and the number of convictions which resulted.[190] The United States Attorney responded that during that period there was only one prosecution and it involved child pornography.[191] In a letter dated February 22, 1984, the United States Attorney for the Central District of California in Los Angeles, said that it would be a "misuse of the limited resources of this office to prosecute so-called adult films" and added that he and his predecessor had concluded that films of this variety could not be prosecuted successfully in that district.[112]

The perception is pervasive among federal law enforcement agents that most United States Attorneys will not prosecute cases involving obscene matter. According to an Assistant Chief Postal Inspector, the Postal Inspection Service presents very few obscenity cases to the United States Attorneys because federal prosecutors will not authorize prosecution.[193] Experiences of Postal Inspectors in which federal prosecutors have declined prosecution of cases have dissuaded them from fully using their existing resources to investigate obscenity cases.[194]

An agent of the United States Customs Service testified that his office had made countless thousands of seizures of adult materials over the last two years, but had presented none of them to the United States Attorneys' offices.[195] The agent said it was his understanding from the Assistant United States Attorneys that the Department of justice policy was not in favor of prosecuting obscenity cases and presentation would be pointless.[196] Similar statements have been received from federal agents in Minnesota and New York.[197] The same Customs agent testified that he had presented fifty different child pornography seizures to the United States Attorneys for prosecution of which approximately fortyseven were accepted for prosecution.[198]

While the Departmental guidelines make both child pornography and enumerated types of adult material of equal priority, there is a practice of prosecuting child pornography ahead of all else and to the virtual exclusion of obscenity cases. A Department of justice official testified that all child pornography cases "merit priority" while the Department seeks obscenity cases which would have "significant deterrent effect."[198]

Despite stated departmental objectives, in practice, emphasis on child pornography to the exclusion of adult obscenity cases is apparent.[200] While aggressive prosecution of child pornography cases is laudable, it should not be a justification for the failure to prosecute appropriate cases involving obscene material. The small number of obscenity prosecutions is not a product of the Department's existing guidelines. The lack of obscenity prosecutions is a result of the way in which the guidelines have been interpreted and not implemented by United States Attorneys. The reverse of the Department's stated policy appears to be the actual practice. The guidelines are used as a basis for declination, i.e.: a reason to "get rid of a case presented", and are not used to establish prosecution priorities. This practice has created the perception among federal law enforcement agents that the work necessary to present an obscenity case to the United States Attorney's office is a wasted effort.[201]

The United States Attorneys should make, as the Assistant Attorney General requested in his memorandum, a realistic appraisal of the obscenity problem in their respective jurisdictions. They should identify existing violations of obscenity laws, use Departmental guidelines to create priorities and begin to prosecute offenders aggressively and without further delay.

In implementing the priorities under the Department of Justice Guidelines, the United States Attorneys may consider examining the nature of the obscene materials. This may be done in accordance with this Commission's findings of harm with respect to each class of material.[202]

Only the Attorney General by direct and continuous action and personal supervision can ultimately ensure that these federal officers fulfill their responsibility in this neglected area. This attention and supervision should result in immediate positive results in law enforcement and prosecution efforts. The effects of this action will have long term consequences and will serve as the foundation for a continuing prosecution and enforcement program.

Notes

Adult Pornography
 
Indicted
Convicted
1978
11
20
1979
1
2
1980
54(*1)
1
1981
2
15(*2)
1982
7
4(*3)
1983
0
2
1984
6
11(*4)
1985
19
14(*5)
1986
2(*6)
 
(*1) Includes 45 MIPORN defendants.
*2) Includes 5 MIPORN defendants.
Convictions of two other MIPORN defendants in 1981 were reversed on appeal.
(*3) Includes 1 MIPORN defendant.
(*4) Includes 6 MIPORN defendants.
(*5) Includes 2 MIPORN defendants.
(*6) Both are MIPORN defendants.

Districts Which Have Prosecuted Adult Pornography Cases Since January 1, 1978

  • Northern District of Alabama    
  • Southern District of Alabama    
  • Central District of California
  • Middle District of Florida          
  • District of Kansas     
  • Eastern District of Kentucky   
  • Western District of Kentucky   
  • District of Massachusetts    
  • District of Nebraska
 
  • Eastern District of New York
  • Western District of New York
  • Western District of North Carolina
  • Western District of Pennsylvania
  • Eastern District of Tennessee
  • Western District of Tennessee
  • Western District of Texas
  • District of Utah
  • Eastern District of Virgina

Districts In Which Adult Pornography Cases Are Presently Pending

  • Southern District of Florida
 
  • District of Utah

     

 

Statistics have been obtained from several sources. While they are essentially complete, it is possible a few cases may have been omitted. Letter from Donald B. Nicholson to Alan E. Sears (Feb. 28, 1986).

 

  1. Department of Justice, United States Attorney Manual (1977).
  2. Id. (This Commission does not believe these are inappropriate.)
  3. Memorandum of Attorney General William French Smith, October 4, 1982. "Proactive prosecution" is a term used to suggest affirmative action taken by law enforcement officers and prosecutors. This term should be contrasted with "reactive prosecution" in which law enforcement officers respond to specific complaints of recently discovered crimes. Obscenity cases generally cannot be developed without proactive investigative efforts.
  4. Id.
  5. See, infra note 180.
  6. Memorandum of from Stephen S. Trott, Assistant Attorney General, Criminal Division to all United States Attorneys (Aug. 24, 1983) (discussing enforcement of Obscenity Laws).
  7. Id.
  8. Id.
  9. Chicago Hearing, Vol. II, James S. Reynolds, p. 267.
  10. Id.
  11. The Criminal Division of the United States Department of justice has compiled and provided the following statistics with respect to recent and current obscenity law prosecutions.
  12. Chicago Hearing, Vol. I, Paul McGeady, pp. 82-3.
  13. Chicago Hearing, Vol. II, James S. Reynolds, p. 267. In addition it is noted that this Commission invited United States Attorneys from several major districts to attend and testify at its hearings. No United States Attorney whose office does not prosecute obscenity cases accepted the invitation to appear before the Commission to explain their policy.
  14. Id., pp. 267, 271.
  15. Chicago Hearing, Vol. I, Donald Smith, pp. 30-31.
  16. Chicago Hearing, Vol. I, Paul McGeady, pp. 82-83.
  17. Id., p. 83.
  18. Chicago Hearing, Vol. I, Paul McGeady, pp. 83-85; During the same period the Los Angeles Police Department was actively involved in the investigation of major obscenity distributors; Chicago Hearing, Vol. I, Donald Smith, p. 33; Since 1973 the Los Angeles Police Department vice division successfully convicted offenders in over three hundred obscenity cases. In addition, it is noted that the Los Angeles Police Department cases were prosecuted in California state courts which use the Memoirs-Roth test, a much more difficult legal standard than in the federal courts which apply Miller. Los Angeles Hearing, Vol. I, James Docherty, p. 6; See also, The discussion of the History of Regulation and First Amendment Considerations for further information.
  19. Washington, D.C., Hearing, Vol. 1, Jack Swagerty, p. 138.
  20. Id., pp. 70-71.
  21. Id.; Chicago Hearing, Vol. I, Jack O'Malley, pp. 117-18.
  22. Id.
  23. Chicago Hearing, Vol. I, Paul McGeady, pp. 86-86.
  24. Chicago Hearing, Vol. I, lack O'Malley, p. 119.
  25. Chicago Hearing, Vol. II, James S. Reynolds, p. 266.
  26. From 1978 through February, 1986, 255 persons were indicted and 215 individuals convicted of child pornography law violations. This should be contrasted with one hundred indictments and seventy-one convictions for obscenity law violations during the same period.
  27. See, Chicago Hearing, Vol. I, Jack O'Malley; Washington, D.C., Hearing, Vol. 1, Jack Swagerty.
  28. See, The discussion of the harms and benefits attributable to each type of material in Part One.