December 6, 2009
Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
The Buffalo News has two effective new articles about the dynamics that surround the application of the federal sentencing guidelines for child porn offenses. The start of this first article, which is headlined "Child porn suspect faces risk with trial: Brose case may be 1st to go before jury here," spotlights some of the plea and sentencing realities for child porn offenses in one federal district and nationwide:
If filmmaker Lawrence F. Brose goes to trial and wins an acquittal in his child pornography case, he will accomplish two firsts at Buffalo's federal court. He would be the first person ever arrested in a federal Internet child porn case to go to trial in Buffalo. He also would be the first person to emerge without a felony conviction.
Every other person charged with such crimes in the federal courts of Western New York — including at least 189 men since October 2005 — has either been convicted or still has charges pending, according to court records. A few men got breaks from federal judges, but authorities say most local defendants who admitted to possession of child porn got federal prison terms of at least four to 10 years. If a defendant chooses to go to trial and is convicted of the more serious charge of receiving child porn, he can get up to 20 years.
"We have never had a federal child pornography case go to trial here in Buffalo. Everyone has pleaded guilty," U.S. Attorney Kathleen M. Mehltretter said. "We did have three cases go to jury trials in Rochester, and all three were convicted."
On a national scale, federal trials in such cases are rare and acquittals exceedingly rare. According to the U.S. Justice Department, 7,234 people have been arrested on federal child porn charges since 2006. Of those, 292 defendants went to trial. All but 15 were convicted.
The start of this additional article, which is headlined "Sentencing guidelines may undergo revision," documents the broader on-going debate over the federal sentencing guidelines for child porn downloading:
Many Buffalo defense attorneys have complained for years that men convicted in federal court of looking at child pornography on their computers sometimes get longer prison terms than men convicted in state courts of actually molesting kids. Now, the issue is getting some national attention … from the federal judges who hand out the sentences.
Many federal judges throughout the nation have asked the U.S. Sentencing Commission to revise the advisory sentencing guidelines in cases of child pornography possession. Western New York's chief district judge, Richard J. Arcara, is one of them. "I'm not sure that the guidelines, as they are currently written, assist [judges] in identifying factors that distinguish a defendant who is a threat to the community and likely to re-offend from one who is not," Arcara said in July, while speaking at a public hearing on sentencing issues.
Officials of the Washington-based sentencing commission said they are looking at the suggestions from Arcara and other judges. The commission could propose some changes … which would have to be authorized by Congress … next year. "It is on our priority list for the forthcoming year to take a close look at the child pornography guidelines," Beryl Howell, a member of the sentencing commission, said during another public hearing in Chicago in September.
That word comes as very good news to Thomas J. Eoannou, Mark J. Mahoney and Marianne Mariano, Buffalo defense attorneys who have raised questions about the guidelines for years. "I believe possessing child pornography should be a felony crime, and it is," Eoannou said. "But I think the [federal] sentences for people who only possess it are way out of whack."
Mariano heads the federal public defenders office in Buffalo. She said she is thankful that judges are taking an interest in the issue because child porn offenders aren't a group likely to have many advocates before Congress.
Related issues concerning the debate over the federal guidelines for child porn offenses are also discussed in this local article from Virginia, which is headlined "Chesterfield man gets 17 years for 2nd child-porn conviction." Among the interesting facets of that local story is the fact that a member of the "Virginia attorney general's office [served] as a special assistant U.S. attorney" in the federal case.
Also, the Denver Post today has this notable editorial titled "Child porn laws do need review."
A few related recent child porn federal sentencing posts:
- ABA Journal covers the controversies over federal child porn sentences
- Potent DOJ response to ABA Journal article about federal child porn sentencing
- Potent response to DOJ account of federal child porn sentencing
- Strong sentencing opinion noting disparities in federal child porn downloading cases
- More examples of sentencing uncertainty surrounding federal child porn cases
- Effective review of federal uptick in child-porn prosecutions
- Documenting the uptick in child porn prosecutions
- "Does the punishment fit the crime for child porn?"
- "Federal judges argue for reduced sentences for child-porn convicts"
December 6, 2009 at 11:36 AM | Permalink
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The Commission's preliminary 4th Quarter statistical report for fiscal 2009, released December 2, shows that while the rate of non-government sponsored below-range sentences has risen only to a disappointing 15.9 percent in the last year (despite Booker, Gall, Kimbrough and Spears), the rate of non-5K below-range sentences for child pornography offenses [where 2G2.2 is the primary guideline] (including those labeled as "gov't sponsored) has reached as high as 52.5% (797/1519). That's an amazingly high rate of district judge dissatisfaction with a recommended range.
Posted by: Peter G | Dec 6, 2009 3:38:20 PM