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October 7, 2008

Another puzzling report on federal child porn sentence

Regular readers may get tired of my regular anecdotal reports on federal child porn sentencings, but I continue to struggle to figure out how different US Attorney offices are dealing with these sad cases. For example, consider the remarkable case from Virginia reported here, headlined "Former Marine gets 12 years for 650,000 child porn images."  The press account indicates that the defendant had a history of sex with minors and a record-setting collection of child porn:

Assistant U.S. Attorney Melissa O'Boyle ... told U.S. District Judge Jerome B. Friedman that the 650,000 images included 325,000 still images and 325,000 video images, but that the number was conservative.  Agents simply stopped counting at a certain point.  "The child pornography collection that the defendant had was pretty much unlike anything the U.S. Attorney's Office here has ever seen before," she told the judge.

In seeking a longer prison term than what sentencing guidelines called for, O'Boyle told the judge that the collection contained "particularly brutal" and "horrendous acts of bondage and bestiality" involving children.  Some were as young as infants, she said.  [The defendant] also told court officials during a pre-sentence interview that in the early 1990s he visited Tijuana, Mexico, and Thailand and paid money to have sex with girls who said they were minors, O'Boyle said.  He told the officials that he paid more money for the prostitutes because they were young.

And yet, despite all of these aggravating factors, the federal prosecutors in this case apparently were only seeking a sentence of just over 11 years of imprisonment.  This recommendation seems in stark contrast to the recommended sentence of nearly 20 years in the Hanson case discussed here and other cases I have seen in which more sympathetic defendants are facing much longer recommended sentences from federal prosecutors.

As I have noted in prior posts, it is hard to tell exactly what is going on in this particular sentencing arena based on snippets of information from the press and various anecdotal reports.  For this reason, I hope the US Sentencing Commission will take a close and studied look at how these kinds of cases are being handled.  There is every reason to fear that child porn downloading is being subject to wildly disparate sentencing consequences nationwide perhaps due solely to disparate prosecutorial charging and bargaining policies.

Some related federal child porn sentencing posts:

October 7, 2008 at 03:33 PM | Permalink

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» Another Variation in Child Porn Sentencing from Sex Crimes
At SLP, Berman continues to track the variations in prosecutor's requests for child porn sentences at the federal level. The latest data point was described as follows:Regular readers may get tired of my regular anecdotal reports on federal child porn [Read More]

Tracked on Oct 8, 2008 11:25:37 PM

Comments

Doug:

"wildly disparate" sentences? Let's call a spade a spade.
Child porn/child rape sentences are arbitrary and capricious. Plain and simple.

Posted by: daniel | Oct 7, 2008 5:01:50 PM

it seems to me your quibble is with the distinction between possession (your Virgina defendant) and distribution (Hanson). - Prosecutor Who Enjoys Your Blog Despite The Anti-Incarceration Bias

Posted by: Jon | Oct 7, 2008 5:54:21 PM

Jon:

If you are a prosecutor then you know your point actually supports our thesis. In most cases, there is no discernible difference between possession and distribution in the underlying fact pattern. The overwhelming majority of child porn charges relate to the Internet and most of those relate to p2p. In that situation, there is simply no difference between possession and distribution; if there was a difference p2p couldn't operate. On p2p those who distribute possess and those who possess distribute; it's axiomatic.

Since that was the case, why didn't the prosecutor in Hanson charge the defendant with possession instead of transporting and distribution? It certainly would have been within his discretion to do so. Instead, it seems like he went for the charges that would ring up the maximum sentence in that case rather than considering how those charges fit within the broad scheme of control outlined by Congress.

It is plausible, given the way the current case was investigated, that distribution charges were not an option (although I find it incredible that a person could collect more than half a million child porn images and videos in this day and age without being involved in on-line trading). Nevertheless, it creates a discongruent result when a person who collected 650,000 images (more than I have ever heard of in any case before) gets an 11 year sentence and while another person who engaged in activity that was equally or less morally heinous (600 images) gets a much stiffer sentence under the guidlines. Indeed,a pure ratio basis indicates that the person in Hanson got a year in jail (after the judge reduced his sentence) for each 100 pictures found while the person in this case got a year in jail for each 60,000 images found. A difference of 600:1!!

I don't know if the person in this case should have gotten a longer sentence or the person in Hanson should have gotten a shorter one. But I do know that when you look at the underlying fact patterns and the sentences imposed, the results look capricious to me.

Posted by: Daniel | Oct 7, 2008 8:15:11 PM

I still can't get my mind around these big big long long sentences for sitting in your house and looking at smut (I agree it's disgusting) on your computer - never passing it on, never touching a child, nothing.
The law's assumption is that you will BECOME a pedophile if you look at the images. Is this a thought control law or what? Incredibly Orwellian and based on one survey of 150 men in prison in Arizona. 15,000 men with their lives destroyed forever for looking at smut. Our country has lost it's ability for rational, logical thinking.

Posted by: Marge | Oct 8, 2008 9:38:05 AM

Sentencing guidelines can be a difficulty. Surely the fact that this man served in the military bought him some leeway with either the judge or the jury. The Fed's probably have different sentence guidelines depending upon whether or not the pornography was nude photos, sexual acts, violence, etc. It's pretty disgusting, but that may be how they figure it out.

Posted by: Joe | Oct 8, 2008 10:03:03 AM

Given that they didn't even bother making a fully accurate count I have a hard time believing they made any decision based on a detailed breakdown of the material. What would have been more interesting would be a government claim with that sort of basis for a maximum sentence and then litigate the nature of the more questionable items. Are just 100 of them actually adults posing as minors, 100k? I could see that sort of headache going into the decision on how to proceed.

Posted by: Soronel Haetir | Oct 8, 2008 10:10:20 AM

Soronel:

The notion that prosecutors are charging people with child porn for adults posing as minors is a myth. It's extremely difficult to look at a picture and differentiate between a legal 18 year old and a 16 or 17 year old minor. This is one of the reasons that legit porn sites are required to keep documentation on all their employees. While I can't say it has never happened, a decent defense attorney would challenge in a minute. If someone is being charged with child porn, normally it is obvious from the picture that is a child.

What I am waiting for is the enterprising prosecutor who claims that each frame of a movie is in essence a seperate photo (which technically it is) and therefore someone who has several child porn movies is guilty of 1,000,000,000 charges of child porn. I think that would make a nice alarmist headline.

Posted by: Daniel | Oct 8, 2008 11:48:54 AM

Daniel,

Like I said, avoiding such contentions seems like a reasonable basis for making charging descriptions. However there is a huge amount of material out there that isn't particularly well sourced, so I'm not sure what point you are trying to make when you say that the producers keep records.

Posted by: Soronel Haetir | Oct 8, 2008 1:04:29 PM

Marge writes------:
I still can't get my mind around these big big long long sentences for sitting in your house and looking at smut (I agree it's disgusting) on your computer - never passing it on, never touching a child, nothing.
The law's assumption is that you will BECOME a pedophile if you look at the images. Is this a thought control law or what? Incredibly Orwellian and based on one survey of 150 men in prison in Arizona.

-----------

Marge, the thought isn't that people who look at child porn will become pedophiles. As I understand it, there are two main reasons behind severely punishing people who look at child porn. (1) Real children are harmed in the making of child porn, and less porn would be made in the first place if more people were deterred from acquiring it. (2) Children are harmed later in life by the existence of a permanent record of them being molested. Most people wouldn't want others watching a videotape of them being raped.

Posted by: | Oct 8, 2008 7:04:54 PM

Marge, and anyone else who's curious about the same thing or thinks that the child porn laws are a form of "thought control" might want to read the 2 main Supreme Court cases addressing First Amendment challenges child porn.

New York v. Ferber, 458 U.S. 747 (1982) (holding that the First Amendment permits prosecution of people for promoting child porn)
http://supreme.justia.com/us/458/747/case.html
or for lazy people:
http://en.wikipedia.org/wiki/New_York_v._Ferber

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (holding that the Child Pornography Prevention Act of 1996 was unconstitutionally overbroad because it extended stuff that was supposed to look like child porn but might not have involved actual children)
Opinion:
http://supreme.justia.com/us/535/234/case.html
Cliff Notes:
http://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalition

Posted by: | Oct 8, 2008 7:17:34 PM

comment @ 7:04pm.

The problem with both the arguments you raise is that neither is supported by any scientific data. (1) The notion that child porn is produced to create a market for child abuse is without foundation. The amount of child porn produced with the understanding it will be sold is a minor part of the overall production of child porn. The overwhelming majority of child porn is traded for free, not sold. (2) The way that people feel about their childhood experiences changes over time. Some people are capable of forgiveness. Every time someone brings this point up my response is the same: so what you're telling me is if the now grown-up victim walks into court and says, "it doesn't bother me anymore, I've moved on" the person who was arrested for having his/her picture as a child can walk out of court a free person?"

Posted by: Daniel | Oct 8, 2008 8:41:50 PM

What I think is an even more interesting thought experiment:

Parents take graphic photos of their children, photos that can not be passed off as something innocent. Later the parents die and the now grown children take possession of the material. Can those children be punished if they try to distribute the material?

I'm sure the law says yes, but the law's an ass.

Posted by: Soronel Haetir | Oct 8, 2008 11:35:05 PM

I disagree. That's not interesting at all.

Posted by: | Oct 9, 2008 10:01:40 AM

I find that an interesting case because the only people for whom an exploitation argument could be made, or an argument concerning ongoing harm are the very people doing the exploitation of the materials.

Posted by: Soronel Haetir | Oct 9, 2008 12:32:23 PM

Reading these blogs give me some sense that the world isn't totally insane. I too believe there is a huge distinction between those that pay for images and those that trade, but understand this. If you only trade images, it could be with an FBI agent, and when you send him an image you are charged with "trafficing" which carries mandatory jail time. If sends you and image, you are charged with "receiving" which is another 5 years minimum. I hardly believe that when these laws were written they ever believed they would be used in this manner. It matters not if you have a squeaky clean past, now you are an assumed pedpophile for looking at pictures. They honestly believe that even if you don't have a record, you just haven't been caught yet, but now you have. It is even more unfair to have a female prosecutor making judgements on your case, due to its volatile nature. Deleted images carry just as much weight as others also. This is a "witch hunt" in the first degree. You actually stand a better chance of not being arrested by paying for these images (which I do feel is a crime), because now you aren't as likely to run into an FBI agent lurking in a chat room on AOL advertising FREE PICS, NO AGE LIMIT.

Posted by: JC | Oct 11, 2008 12:01:32 PM

People should think What If someone Was taking pictures of my child and making movies about my child in a sexual manner. How would you all feel would you want the person that was going that to your child to go to jail or what about look at other peoples child in that manner would you feel bad and want something to happen to the person that was condoning the actions of other people to me the people that watch the child porn and the perosn that is making the child porn are disgusting people and should be in prison for what they do

Posted by: Cindra Foltz | Jul 24, 2009 4:48:11 PM

great idea.. thanks..

Posted by: erotic video | Aug 2, 2009 11:34:10 AM

Quote:"People should think What If someone Was taking pictures of my child and making movies about my child in a sexual manner. How would you all feel would you want the person that was going that to your child to go to jail or what about look at other peoples child in that manner would you feel bad and want something to happen to the person that was condoning the actions of other people to me the people that watch the child porn and the perosn that is making the child porn are disgusting people and should be in prison for what they do"

That is exactly what is wrong with the legal system and the law. It is impossible for a jury to be unbiased in passing a verdict or sentence due to this type of thinking.

This may seem cold but it is a fact: One child has their life ruined because of a picture that was taken of them being sexually abused. But every person that views that picture will have their life completely and totally ruined. What is the ratio there? 50:1, 100:1,..... ect. And the child MAY suffer humiliation, the arrested viewers WILL be publicly humiliated and branded for the rest of their lives. But the child can still move on and have a meaningful and productive life. The arrested viewer must pay for the rest of their lives, they are a convicted felon thus most decent employment is no longer available to them. Their face and alleged crime is broadcast throughout the community or nation even before they are brought to trial or as in most cases pleaded out. The convicted viewer must have their personal information posted on the internet along with the child rapists, they do not in most cases differentiate between the two.

A person would receive less jail time for rape, manslaughter, armed robbery and even murder, which are all respectable crimes. What about Yahoo, AOL,Myspace,Facebook, Giganews..........ect, that maintain the servers loaded with child porn. Oh wait the government has given them a free pass to distribute child porn without prosecution.

Posted by: Rick | Oct 22, 2009 9:28:40 PM

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