Bernie's Crime and Punishment

Bernie Ward pled guilty yesterday to a single charge of distributing child pornography and will remain under house arrest until a sentencing hearing in August. It's expected that he'll be sentenced to a minimum of five years in federal prison, and he could receive as much as nine years.

I've posted about this case several times. I've learned more about it since my previous entries. I've come to believe that Bernie has been a troubled man for years and has shown a self-destructive propensity. Furthermore, I agree with those who say that child pornography is egregious exploitation of children and cannot be tolerated.

But the question that comes to mind is how the law should deal with those who are involved with it. I was listening to a talk radio program this morning on KGO, Bernie's old station. One of the guests was a former FBI profiler and child sex abuse investigator. Her stance was that any adult intentionally involved to any degree in child pornography deserves to have the book thrown at him.

I can understand where she's coming from. She's investigated very serious cases of child pornography and seen firsthand the awful and permanent damage that this kind of exploitation can wreak on a child's psyche. And she makes a good point when she says that the child victim continues, in a sense, to be exploited and violated every time his or her image or video is passed along to someone else.

However, it seems to me that the law needs to consider more than it does the motives behind someone's involvement with child pornography as well as the extremity of the pornography and the degree or frequency of one's involvement with it. For instance, the only pornographic image in Bernie's case that I've seen described in any detail is of a topless woman, a naked teenage boy, and a fully clothed young girl, and they were not engaged in any kind of sexual or simulated sexual acts. Contrast this with a video of a prepubescent child being, say, gang raped. Possessing and even distributing the former seems far, far less egregious than possessing and distributing the latter; yet, I'm of the impression that the law makes little or no distinction between the two.

Another issue that came to mind as I listened to this morning's program concerns what kind of sentence offenders in general and Bernie in particular should be dealt for their crimes. The talk show host opined that Bernie appears to be a sick man in need of treatment but that this in no way "exonerates" him for his actions. But the question I continue to struggle with is, If someone commits a crime because he's sick, why does he deserve to be punished for it? Treated? Yes. We treat people for sickness and its symptoms. But punished? Should we punish people for being sick and for exhibiting the symptoms of their sickness?

The only reason I can see for punishing someone for their sickness is if the punishment is either part of the cure or, in the case of incarceration, quarantines the sick person from harming others with his sickness. But then, we're not talking about punishment per se but about aversive conditioning as treatment or about protective confinement, and that treatment or confinement is made as compassionate and merciful as possible while retaining its efficacy.

But is nine or even five years in federal prison merciful treatment (or punishment) for Bernie and his sickness? Not only that, but is it more effective than one year in prison or in a more humane institution of some kind or even under continued house arrest. Think of what this man has already suffered. He will never get to do talk radio again. He will never be able to teach children again in public or private school. He'll have to permanently register as a sex offender and be subject to all of the restrictions and indignities that go with it. He will probably be treated as a pariah by a large part of the community and will feel ashamed in public for the rest of his life. Would increasing his time of incarceration significantly increase the deterrent effect of his sentence? Would a nine year or twenty year sentence do that much more to deter him when he gets out or to deter others from committing this kind of offense, or does increasing the sentence yield diminishing returns of deterrence and quickly become unjustified punishment or vindictiveness for punishment's or vindictivenesses sake? I wonder if any persuasive scientific studies have been done on this question--i.e., the effect of prison sentence length on deterrence.

It seems to me, as it did to another guest on today's talk show, that Bernie's sentence is "draconian". In other words, it's far, far more harsh than what he deserves or than what is needed to bring optimal benefit to society.

What do you think?

Revisiting the Bernie Ward Story

I recently posted an entry about local talk radio host Bernie Ward. I complained that the federal government appeared to be trying to railroad him into a lengthy prison term merely for downloading a few images of child pornography that weren't even on his computers when the authorities seized them. I said I was inclined to believe Bernie when he said that he was using the downloaded images for his research for a book about "hypocrisy in America." I believed him because I'd been listening to him for over 25 years on the radio, I liked him, and I had never heard even the faintest hint of a suggestion from or about him that he harbored any sexual interest in children. I admit that I had some dimly conscious doubts about his excuse, but I wanted so much to believe him that I was willing to overlook certain things in the news about his case that seemed suspicious.

Well, now that I've read more details about the case, I have to say that I now have an extremely difficult time buying Bernie's excuse. It definitely doesn't seem to fit the unpleasant facts that have come to light.

But while my opinion of the motives behind his acts has changed, I haven't changed my opinion that someone doesn't deserve to spend years if not decades in prison for merely possessing and distributing, for the briefest of time, a few images of child pornography that he didn't sell or buy or apparently play any role in creating. Yes, child pornography is a very bad thing, and those who make it or otherwise profit from it deserve to be treated severely. But what Bernie apparently did doesn't begin to rise to that level of egregiousness.

After recent revelations about his case, I can't see any way that he could ever return to talk radio. Not just KGO but also anywhere else. His reputation seems forever ruined. His media career seems forever ruined. And I can't imagine that his marriage and family life are ever going to be the same, and they may be ruined too. If the government wants to pile on with extended public service, probation, and, perhaps, even a heavy fine, well, I guess it has to do something because Bernie did break the law, as even he admits, and charges have already been brought. But a long (or even short) prison sentence and permanent status as a registered sex offender seems like an ostensive definition of "cruel and unusual punishment" not only of Bernie but also of his family.

And some of the hateful things I've heard people say about how Bernie deserves to spend the rest of his life in prison being raped, brutalized, and humiliated, or to at least have his life destroyed forever seem more disturbing to me than anything Bernie appears to have done.

I feel very sorry for Bernie Ward, for his family and friends, and for a community that has lost an intelligent, thought-provoking, and influential voice for the poor and middle class. What unfortunate pathology led such a smart and well-read man to bring such ruin to himself and such pain to his loved ones?

The Trial of Bernie Ward

Bernie Ward grew up in San Francisco, was a Catholic priest for two years before leaving the priesthood to marry and start a family, taught theology in Bay Area high schools and in a private school in Washington DC, worked as chief legislative assistant for U.S. Representative Barbara Boxer, became an award-winning reporter and fill-in talk show host for Bay Area newstalk radio giant KGO Radio, and then became a popular full-time KGO host of two programs, the Bernie Ward program on weeknights and God Talk on Sunday mornings. For a time, he billed himself as "the lion of the left" and always championed a politically and religiously liberal perspective both on his radio programs and in his spirited appearances on national television programs. He also raised hundreds of thousands of dollars via his Thanksgiving charities fund drives every year that he was host of God Talk. He was one of my favorite talk show hosts, and I've listened to him regularly on KGO since the mid-to-late 1980's.

However, he was recently placed on paid leave from the station pending resolution of federal charges brought against him for owning and distributing child pornography. Ward admits that he did download several images of child pornography but says that he did it as part of his research for a book he was planning to write on "hypocrisy in America."He contends that when federal officials seized his computer in early 2005, they found no child pornography on it, and I'm not aware of any allegations ever being made against him of being involved in any kind of child sexual abuse. Apparently the federal government offered him a plea deal sometime back that would have meant his spending several years in prison, and he rejected it. Now he's been indicted and could conceivably serve decades in prison if he's convicted.

Everything I've read and heard about Bernie Ward tells me that he's been a wonderful husband to his pediatrician wife, father to his four children, and supporter of the community, especially in his fund raising for agencies serving the destitute. I have seen no indication whatsoever that he had any sexual interest in children or that he would deliberately do anything to harm children in any way. In fact, everything I know about Bernie Ward tells me quite the opposite. Unfortunately, federal law is very clear that if one receives or distributes through any means any child pornography, it doesn't matter why one does it. All that matters is that one has done it, and the penalties for it are incredibly severe.

Although I believe that child pornography is bad and should be illegal, I also believe that the penalties for simple possession of it are unreasonably draconian and that the apparent motives of the accused should be taken into account in deciding whether or not to bring charges. In Bernie's case, based on what I know, the spirit of the law aimed at rightfully protecting children from sexual exploitation seems to have been grossly perverted by slavish and perhaps malicious adherence to the letter of the law with what seems to me to be the likely result of ruining the life of a hard-working and talented man who has been a blessing to his community and family and of doing irreparable harm to his family and many friends. Yes, one could argue that if he's convicted and imprisoned, this will deter others from becoming involved in child pornography in any way, shape, or form. But even if this is true, and I wonder if it is, it seems that this good is vastly outweighed by the harm done in this particular instance.

I don't know that Bernie's longstanding, fierce opposition to conservative political leaders and especially to George Bush has played any role in the federal government's dogged pursuit of its case against him, but I do believe, based on what I've read and heard, that the federal government is morally, even if not legally, wrong to bring these charges against him, and I wish Bernie well in his defense against those charges. I would love to hear him back on KGO as soon as possible.

Bernie debating a conservative talk show host on MSNBC