I’ll get to the topic of today’s post in just a moment, but first I wanted to note what I found to be a fascinating little tidbit about the Willingham case, which I’ve previously addressed here and here. It has to do with Willingham’s final words, and I promise that if you have the slightest interest in the case, you’ll be interested in this.
OK. On to today’s feature presentation. I got started thinking about whether child pornography offenders can be required to forfeit their homes because of this article from Kentucky. (Hat tip: Sentencing Law & Policy.) The short summary is that a federal criminal defendant who pled guilty to receiving child pornography was sentenced to 15.5 years in prison — and was required to forfeit his home, “because of the high volume of images and the length of time [he] used his home to download and view child pornography.”
I’ve blogged before about the controversy over child pornography sentencing. But the forfeiture question is a bird of a different feather. Would something like this be possible under North Carolina law?
The short answer is no. There are lots and lots of forfeiture provisions scattered among North Carolina’s criminal laws. Some are quite narrow, like the provisions for forfeiture of items used in and acquired as a result of wildlife and marine fisheries offenses, G.S. 113-137, and for forfeiture of motor vehicles involved in the disposal of more than 500 pounds of litter, G.S. 14-399(g).
Others are somewhat less narrow, insofar as they relate to very common offenses, but still remain tailored to a limited class of crimes. The provision for forfeiture of any vehicle used in a DWI after a DWI license revocation, G.S. 20-28.2 et seq., is of this type, as is the provision for forfeiture of property connected to violations of the controlled substances laws, G.S. 90-112 et seq.
Although the General Assembly presumably could have included a forfeiture provision in the child pornography laws, it didn’t. There’s no specific provision for, as an example, forfeiture of premises used for the possession of child pornography — or even of computers used to store it. See generally G.S. 14-190.13 et seq.
Thus, the question becomes whether our general forfeiture law could encompass premises used for the possession of child pornography. The general forfeiture statute is G.S. 14-2.3, and it provides that “any money or other property . . . acquired” by commission of a felony is subject to forfeiture, with a few narrow exceptions. But the home of a person who possesses child pornography is not acquired by the offense. It is arguably used to commit the offense, but our courts have held that to be distinct. See, e.g., State v. Triplett, 70 N.C. App. 341 (1984) (money used to commit a crime, but not obtained as a result of a crime, not subject to forfeiture).
A quick scan of the reported federal cases suggests that forfeiture is increasingly a part of federal child pornography cases. Forfeiture of the computers used to commit the crimes appears to be very common, and forfeiture of the defendant’s home is not unheard of. See, e.g., Keys v. United States, 545 F.3d 644 (8th Cir. 2008) (discussing history of a case in which the government sought forfeiture of the defendant’s house, only to have the district court judge rule that the forfeiture violated the Eighth Amendment’s prohibition against excessive fines); United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) (discussing whether a child pornography defendant should have been permitted to cross-examine a law-enforcement officer about his agency’s financial interest in forfeiting the defendant’s house). Anyone think that North Carolina should go down this road?