RECOMMENDATION 8

Part: 
Three
Chapter: 
2

State legislatures should amend, if necessary, obscenity statutes to eliminate misdemeanor status for second offenses and make any second offense punishable as a felony

State obscenity statutes frequently classify a first conviction as a misdemeanor. In some jurisdictions an obscenity violation becomes a felony when the specific offender is convicted a second time. In other jurisdictions an obscenity violation will remain a misdemeanor regardless of the number of prior convictions. This system results in minimal penalties for many offenders and is no deterrent to large scale criminal enterprise.

State obscenity laws which provide misdemeanor penalties for recidivist offenders produce results which have a minimal deterrent effect. Fines in the amount of thirty to ninety dollars are a common disposition for a first offense in Chicago.[167] Three hundred to five hundred dollar fines are standard in Houston, Texas.[168] In Florida, a corporation with twenty-five prior obscenity convictions was fined $1,600.[169] In Los Angeles, where the industry earns $550 million a year,[170] a major distributor is often fined no more than $10,000.[171] The amounts of these fines are inconsequential when compared to the profits earned by many producers or sellers of obscene material.[172]

An amendment to state statutes enhancing the penalties for subsequent convictions for obscenity violations would recognize the recidivist nature of the crime and should be directed to management personnel of the wholesale or retail operation. Classifying the crime as a felony would allow judges to impose substantial fines and periods of incarceration for a repeat offender. A conviction for a felony would substantially reduce the incidence of inappropriate sentencing for recidivists.

Notes

  1. Chicago Hearing, Vol. I, Thomas Bohling, p. 16.
  2. Houston Hearing, Vol. II, W.D. Brown, p. 50.
  3. Miami Hearing, Vol. I, Mike Berish, p. 66.
  4. Los Angeles Hearing, Vol. I, Donald Smith, p. 30.
  5. Id., p. 46.
  6. See, The discussion of the Production, Distribution and Technology of Sexual Explicit Materials for further information.