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January 20, 2010

Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders

This new Wall Street Journal article, which is headlined "Judges Trim Jail Time for Child Porn: Data Show Trend Toward Leniency for People Who View Images but Aren't Molesters," provides the latest main-stream media coverage of a leading federal sentencing story that regular readers know all about.  Here is an excerpt:

More federal judges are showing leniency toward individuals who view child pornography but who aren't themselves molesters, according to recent data on prison sentences.

Judges are looking skeptically at prosecutors' requests to give 15- to 25-year sentences for viewing sexual images of minors, handing down more sentences of five to 10 years, or in some cases probation. The movement has been gaining steam over the past two years even as the Justice Department has made child pornography and other child-exploitation prosecutions a top priority, leading to more than 2,300 cases last year, the highest figure since the department began tracking the statistic.

"We've reached a critical momentum for change," said Troy Stabenow, a federal public defender in Missouri whose critique of child-pornography sentences has been cited by judges. "The recent sentences are signaling, as strongly as I have ever seen, that judges around the country think the current system is broken."...

In the 12 months ended September 2009, federal judges gave prison sentences below the guidelines in 44% of cases in which individuals obtained child pornography or shared it with others, up from 27.2% two years earlier, according to data from the U.S. Sentencing Commission, a federal agency that develops the guidelines. Those figures exclude cases in which judges gave lighter sentences at the prosecutors' request. In the same two-year period, the rate by which judges gave below-guideline sentences for all criminal cases rose to 16.9% from 12.5%.

Some judges who criticize the recommended sentences say they are the result of an unfair linking of child-porn users and sexual predators. While some child-porn viewers are accused or convicted of physical molestation, psychologists who treat sexual deviants say it is unclear whether most viewers of child pornography are likely to commit such acts. Many of the defendants convicted of downloading images said they would never molest a child.

The shift has upset advocates of abused children who say the sentences won't deter future misconduct. "There's a clear trend among judges to treat possession of child porn as if it's not serious, but these are crime-scene photos," said Ernie Allen, president of the National Center for Missing & Exploited Children. Mr. Allen says the dissemination of such images encourages behavior that hurts children, not least the production of those images.

Some child-porn viewers still get sentences of 15 or 20 years from judges who follow the guidelines. That's greater than punishments meted out to some child molesters and other violent criminals.... The split among the judiciary means that someone who receives a prison sentence of several years in one court could get a decades-long sentence in a different court.

Last month, J. Randal Hall, a federal judge in Augusta, Ga., sentenced a child-porn viewer to 20 years in prison. There was no evidence that the defendant, Roger Gambrel, who is in his mid-50s, physically abused children, said his lawyer, Jacque Hawk. "This amounted to a death sentence," Mr. Hawk said.

As regular readers know, these child porn sentencing issues have been building in intensity in the federal courts for a number of years, and last fall the US Sentencing Commission finally indicated that they would be re-examining the federal guidelines for child porn offenses.  However, the USSC's latest list of potential guideline amendments do not include and proposed modifications of the existing dysfunction guidelines, and thus these problems are likely to persist for quite sometime.

Just some related prior federal child porn prosecution and sentencing posts (going back to early 2008):

January 20, 2010 at 09:36 AM | Permalink

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Comments

The Sentencing Commission was the first to know of the federal judges rejection over the last 18 months of the Guidelines' heavy-handed treatment of child-porn viewers.

This issue should be front and center with the Commission if the guidelines are to stay true to their ideal of being "evolutionary".

Posted by: mjs | Jan 20, 2010 10:28:33 AM

I am a paralegal in Los Angeles. Thank you for this most important information. This is the federal judiciary moving towards enlightenment. Our prisons in California are full, so let's just fine the heck out of people watching kiddie porn. If they molest, okay, lock 'em up.

Posted by: Dean McAdams | Jan 20, 2010 11:24:07 AM

And while the Pennsylvania School Teacher mentioned in this article serves his 10 years probation:

"In another example from June 2009, a former schoolteacher in Pennsylvania who downloaded images received a one-day prison sentence, followed by 10 years of probation. The federal judge, Lawrence Stengel, said the guidelines, which recommended four to five years, didn't account for the special circumstances of the case. For example, the judge ruled, there was no evidence that the defendant had attempted to molest any children."

Morton Berger, the school teacher convicted for child porn possession under Arizona's sex offender laws (with absolutely no hint of any molestation), is still serving his 200 year sentence without the possibility of parole. Where is the justice in that?

Posted by: Jim | Jan 20, 2010 12:35:54 PM

What is most remarkable is the comment of Ernie Allen: “There's a clear trend among judges to treat possession of child porn as if it's not serious.”

In my view, a defendant who receives “only” a 5 or 10-year sentence, rather than the 15 or 20 the Guidelines recommend, is still being sentenced pretty harshly.

Posted by: Marc Shepherd | Jan 20, 2010 3:38:23 PM

what is even more amazing about Mr. Allen's comments is just about every child porn case I've ever read contains the judge talking about how serious of a crime child porn is. Of course, the courts often note its less serious than other crimes punished less harshly including in some jurisdictions, actually molesting a child. if Mr. Allen really believes that possessing "pictures of a crime" is more serious than actually committing the depicted crime, he doesn't really seem to me to be protecting the interest of children very well.

Posted by: virginia | Jan 20, 2010 4:24:44 PM

I get that you may disagree with Mr. Allen, but to suggest that he's not protecting the interest of children very well is a bit ridiculous given that he works for NCMEC. He's made it his life's work to protect abused children, and he probably has an insight that a lot of us don't have.

Posted by: Domino | Jan 21, 2010 12:02:55 AM

IT’S ALL ABOUT THE MONEY (which might add up to a lot of insight.)

The Big Registry generates big bucks for organizations that lobby for tough sex-crime legislation. Below are the budgets of two well-known organizations, The National Center for Missing and Exploited Children
(NCMEC) and Parents For Megan’s Law (PFML):

NCMEC Annual Report 2007 [2]

Federal Funding - $29.8 million
Total Funds - $42.9 million
Other Contributions - $ 13.1 million
Expenses - $ 40.6 Million
2007 profit - $ 2.3 million
Total assets - $29.3 million
Ernie Allen’s Salary - $410k + $427k in benefits
John Walsh’s benefits - $38k

Posted by: Skeptic | Jan 21, 2010 12:32:03 AM

Prof: How can the Commission "re-examine" by way of amendment a guideline that was, literally, mandated by Congressional directive? No other guideline has been as micro-managed by legislation as the child porn guideline - including the actual image table enhancements and directives to enhance for use of computer (which anyone knows is nearly universal). In another words, you're not complaining about the right people. Just as with the crack/powder debate, the Commission makes a good fall guy for the real offender: Congress.

Perhaps the Commission should issue a report - but a fat lot of good that's done in the crack debate.

Further, I find all the hopping around and crying about rich, white, and typically well-educated child porn consumers to be slightly disgusting while black crack defendants still face 5 years mandatory for a sugar packet full of rock. I don't find the news that white child porn (and fraud) defendants are getting a lot of variance breaks post-Booker to be that surprising - and these sort of statistics only further prove that Booker has been great for those defendants who look a lot like the judges and lawyers who represent them.

I think you typically do a fine job with this blog - however - there should be a post weekly about Congress sitting on the various bills that would, immediately, rectify this national disgrace. There should be specific references to the cowardice of Rep. Conyers and others for burying this legislation while, literally, tens of thousands languish in prison. There is no other single change to sentencing policy at the federal level that would do more good, be more equitable, and effect more actual human beings than to equalize crack to powder and make it retroactive. As the preeminent sentencing source on the web, I have to say, your lack of recent consistent coverage on this issue is sort of the elephant in the room.

The racial disparity that these child porn (and fraud) numbers show is transparent. Perhaps this fact has crossed the minds of the Commissioners? Maybe that's why they are focusing on more neutral fixes like departures?

Posted by: Ferris Bueller | Jan 21, 2010 11:39:01 AM

Just a quick note on this business of restitution to child pornography victims. One, many of the images come from overseas. This is why ICE, the FBI, and Homeland Security is in on the arrests and prosecution. Are victims all over the world supposed to seize this opportunity? Two, this isn't exactly a career choice for kids - there are adults putting them up to it. High dollar restitution rewards would just encourage more parents, uncles, or what have you to put the children in their lives up for grabs and then cry foul and seek restitution. Three - there is such a thing as young women putting their own photos on the net. My, what a convenient way for a 15 year old to make some money.

Thank you.

I am a PhD student in history and the ex-wife of a convicted possessor of child pornography (though I always qualify this information by adding the material was post-pubescent, nudity only material. No sex, no adults.) I happen to think the 5 year mandatory federal supervision, and the 10 years that my husband received, and the lifetime registration requirement punishes him for a crime he did not commit. Particularly when he has been examined by two psychologists, one court appointed no less, who say he is not a pedophile. It is "Minority Report" in real life. I would hope that you are not going to post my email address, and frankly would not like my first name posted either, though I do not mind if my message is posted.

Posted by: Anne | Feb 28, 2010 3:19:31 PM

rectify this national disgrace. There should be specific references to the cowardice of Rep. Conyers and others for burying this legislation while

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Posted by: anan | May 8, 2012 2:08:55 AM

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