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January 19, 2011

Outstanding local media coverage of the crime, prosecution and punishment of kiddle porn downloaders

0116_ChildPornSentencing_01-16-2011_K7GG5JU As regular readers know, I find the modern debates surrounding the law, policy and practice of child porn downloading offenses to be extremely interesting, important and challenging.  Consequently, I am always grateful when the media gives sustained attention to these issues, which defy simple characterizations and can be too readily misunderstood by simplistic reporting.  In turn, I am eager to praise both The Virginian-Pilot and the (Wilkes-Barre) Times Leader for outstanding coverage of these issues in two pairs of stories that ran this past weekend.  All the stories are must-reads.

The two pieces from The Virginian-Pilot — headlined "As child porn activity grows, efforts to trap offenders do, too" and "Leniency often granted in child porn cases" — do a terrific job examining and reviewing the nature of the offenders who get involved in child porn downloading and the ways in which officials catch, prosecute and sentence these offenders.  Here are snippets from the main piece in the series:

The majority of offenders are white males, of all ages, with no criminal history or previous evidence of pedophilia. Researchers and therapists say the lure of child pornography, which grips addicts as intensely as crack cocaine, targets no singular class.

Offenders' educational and occupational backgrounds vary widely: They are convenience store workers and college professors, enlisted sailors and naval officers, police officers, the homeless, and even the FBI's own.

While the number of offenses seems small compared with, say, drug and fraud cases, child pornography was the fastest-growing crime over the past six years in Virginia – up 218 percent from 2003 to 2009. Nationally, the picture is more startling: a 2,500 percent increase in arrests in 10 years, according to the FBI. U.S. Immigration and Customs Enforcement, which handles most federal child exploitation cases, has made 12,000 such arrests since the agency was formed in 2003.

U.S. Attorney Neil MacBride, whose office is handling more such cases each year, said child pornography was a dying industry until the Internet and peer-to-peer networks developed. "It went from almost dead to now a growing epidemic," he said....

As a result of these joint [federal and state investigating] efforts, more than 50 defendants were convicted in federal court here and sentenced to prison between March 2008 and August 2010, with prison terms ranging from one year to 40 years.

Some of the things they have discovered include: a father who dressed his toddler son up as a girl and filmed him in a sexual position; a sailor who searched for pictures of young boys being tied up and urinated on; and a Marine caught with 650,000 child porn images, some that can only be described as horrendous acts of bondage and bestiality....

[J]ust about every police department in the area now has detectives dedicated to stopping child exploitation. All of this has led to a surge in child pornography arrests in the past five years. But law enforcement officials realize they can't arrest everyone viewing, downloading and trading child pornography. They estimate that 50,000 computers in the state contain child porn images.

ICE agents can only get to a couple of dozen a year in Hampton Roads. "When we look at the end users, we look at those who pose a threat or those who act on it, by kidnapping a child, for example," said John Torres, special agent in charge of U.S. Immigration and Customs Enforcement for this region and Northern Virginia. "Then it's those in a position of public trust, like teachers and police officers."

Because ICE and the FBI have overlapping jurisdictions in this area, ICE tries to focus on the international offenders – those who produce and distribute child porn from far away places like Russia – while the FBI zeroes in on domestic online predators. Producers and sellers of child pornography have been arrested in California, Pennsylvania, Florida, Spain, the Netherlands and Russia....

Typically, detectives troll the Internet posing as children or acting as child porn collectors, said Sgt. Terry Wright of the Bedford County Sheriff's Department. "I would say that the past few years it has grown exponentially," he said. "Everything is getting cheaper and faster. It just proliferates the problem." A pattern he sees repeated in offenders is that they start with adult porn but get bored and turn to child porn.

The two pieces from The Times Leader — headlined "Feds, Pa. differ on kid porn: There are reasons for the wide variety in sentencing, experts say; But some still see inconsistency and unfairness" and "Real-world danger of porn offenders uncertain; Research into possible links between viewing material and molesting children still new" — do a terrific job examining and reviewing the different prosecutorial and sentencing treatment of these cases depending upon whether then are handled in federal or state court and also the unclear link between downloading child porn and committing contact sex offenses. Here is the start of the main piece (from which also comes the chart reprinted above that can be easier to read with a click on the graphic):

When officers with an Internet task force raided John Patterson’s West Pittston home in November 2008, they discovered 279 images of child pornography stored on numerous hard drives hidden throughout his residence.

Thirteen months later members of the same task force made another big bust when they raided Michael Albanesi’s home in Wyoming and recovered computer hardware with 507 images of child pornography.

The cases were strikingly similar in terms of the allegations.  Both Albanesi and Patterson, neither of whom had a prior record, admitted they had been downloading and trading child porn images with others over the Internet for years.  Each man faced the potential of dozens of years in prison.

So why, then, is Patterson serving 11 years in prison, while Albanesi was sentenced to just nine-to-23 months?  The answer lies primarily with one key difference between the cases: Patterson was prosecuted by federal authorities, while Albanesi’s case was handled in Luzerne County Court.

The cases are but one example of the widely disparate sentences being levied in child pornography cases that have led some within the justice system –- including federal judges -– to question the fairness of federal sentencing guidelines.

In 2009 the average sentence imposed in federal court on a defendant for possessing and or disseminating child pornography was 7 years, according to the United States Sentencing Commission’s annual report.

Defendants who were prosecuted in a Pennsylvania state court faced much less severe sentences, according to statistics from the Pennsylvania Commission on Sentencing.  A total of 76 defendants were sentenced in 2009.  Of those, 36, or 47 percent, were sentenced to probation, while two defendants, or 3 percent, were sentenced to house arrest or some other punishment that did not involve incarceration.

Of the 38 defendants who were sentenced to prison, 21 percent received state prison sentences ranging from 33 months minimum to 98 months maximum, while 29 percent received county prison sentences ranging from a minimum of five months to a maximum of 22 months.

January 19, 2011 at 12:50 PM | Permalink

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"ICE agents can only get to a couple of dozen a year in Hampton Roads. "When we look at the end users, we look at those who pose a threat or those who act on it, by kidnapping a child, for example," said John Torres, special agent in charge of U.S. Immigration and Customs Enforcement for this region and Northern Virginia. "Then it's those in a position of public trust, like teachers and police officers.""

Can somebody please tell me if this is considered Selective Prosecution? If not why?

Posted by: J | Jan 19, 2011 6:27:19 PM

Such an interesting "crime." While those who abuse children should no doubt be punished, I find it unusual that merely looking at something you're not supposed to look at can be considered a crime worthy of prison. Especially in borderline cases where the 'child' is 16-17. Reminds me of the case that involved the porn star "Little Lupe" and the guy that was about to get prison time for child porn until the porn star herself showed up in court to save the guy and prove she wasn't underage. I wonder how many others have gone to prison for looking at porn that just has young looking women.

By the current definition of the possession of child pornography, you could get prison time for spending some time on 4chan's message board which frequently has child porn images posted, and which take up residence in your temporary Internet files on your computer. By simply being on the Internet, you run the risk of 'possessing' child porn as it's currently defined.

Posted by: Crossfit Equipment | Jan 19, 2011 7:24:14 PM

how true crossfit. kind of like posession of a controlled substance...consdering some figures put the about of U.S CURRENCY contiminated with coke at 50-60%

Posted by: rodsmith | Jan 19, 2011 11:14:59 PM

As a defense attorney, it is extremely difficult to defend these cases in federal court. Most defendants are downloaders--they have never touched a child and there's no real reason to believe they ever would--but prosecutors, judges, and probation officers treat them like they are actively engaged in the abuse that they see in the photos and videos. The guidelines are almost comically draconian, and prosecutors charge most cases with "receipt", which for some reason carries harsher penalties than "possession." Then, of course, there's the images, those depictions of the horrible moments in which some poor kid's childhood was devastated forever, and the uncomfortable discussions with your client about those images. And the family members with whom you have to dance around the whole subject that no one wants to think about, much less talk about, and who don't understand why their son/husband/parent who's never been in trouble, and who's never hurt anyone in their lives, is now looking at potentially decades in prison. And finally, there's the judges who treat you as if you were some sort of an accomplice in the crime merely for suggesting that maybe 20 years in prison is an unjust punishment for a first offender, who downloaded images that have been floating around the Internet now for years, but who never touched anyone. Bleah. Give me a violent, gun toting, drug-dealing gangbanger client any day.

Posted by: anonymous | Jan 20, 2011 12:46:04 AM

Criminals and their lawyers seem to want to justify and say its harmless to "Just download" this sick and twisted material. They say there's no linkage to that and acting "in the real world" Well the demand that is created from these users prepetuates the industry and at a minimum encourages OTHERS to act and commit crimes against kids. How can you really quantify the harm done? Mandatory minimums are the best solution.

Posted by: DeanO | Jan 20, 2011 8:15:15 AM

DeanO - You do realize people don't pay for this material? There is no pecuniary gain to producing the material and no exchange of goods and/or services for downloading it. As many dot-com companies found out a few years back, giving your product away for free really doesn't work as a business model.

Posted by: NickS - student | Jan 20, 2011 8:25:06 AM

Anonymous got it right! My husband is serving 5years on a fed plea to receipt of cp. We have three young children, he has an exemplary record and history, had over 25 letters written for mostly moms, his ex-wife, and even his ex-father in law who ran the Ice division in the past...none of it mattered to the prosecutor who admittedly said this case did not seem to fit what they normally charge! None-the-less, they insisted on charging receipt because they said it was "office policy to not charge less so everyone gets the same"...They refused to charge possession to leave it up to a judge to decide a fair sentence based on real evidence. This was all for 12 pictures only! I know for a fact they got there from a virus on my laptop. At the time, several years ago my husband tried to find some ip address to tie it to so he could report it to the FBI, but we could not find one. We cleaned the virus off of the computer and made sure there were no pics on it. We did not find any because they were not in a typical picture file. It is a long story, but the point is we could not afford to go to trial and just about everyone said they would parade a really bad guy they did catch on the stand and displaying the pics he traded and a jury would would find you guilty just because they needed to blame someone. We couldn't disagree, because as parents we would likely feel the same way. The kicker was the prosecutor said if he was found innocent, they would then come after me (the mother of three and a new baby 5months at the time)since they new it was my laptop in question! He would never let that happen. It was clear all they wanted was a conviction for the sake of it. Since my husband has been incarcerated he is sickened by how many men that have either hurt children or clearly have a problem by the shear number of cp found, that have gotten less time than him or around the same. These are people that should never be let out! We didn't realize how screwed up our legal system is and doing our best to look at this as an in sight we would otherwise never had and hope to be able to be part of making changes that actually will make it a safer place for our children. The way it is now, just makes no sense...

Posted by: Fixnrlaws | Jan 20, 2011 9:01:13 AM

Dear Professor Berman:

I have been reading your blog for several years and have never commented before. I would like to put forth the proposition that you and most of your readers/commentors cannot see the forest for the trees as you/they are mostly arguing how many angels can dance on the head of a pin. Lawyers are the new clergy, but the corrupt government is not my God. SC gets it right a few times.

I am waiting for the government apologists Bill O, federalist, et al, to respond to Fixnrlaws post. "The way it is now, just makes no sense." If they do not see something wrong, they are beneath contempt.

Posted by: albeed | Jan 20, 2011 10:46:59 AM

Very good articles, particularly the discussion of jurisdictional differences in sentencing outcomes. I would hope that reporters covering crime and justice issues are cognizant of those differences in other cases as well, and make inquiries into practices of local prosecutors to determine if they are manipulating the rules to force pleas or to enhance sentencing (i.e., state prosecutors turning over evidence to federal prosecutors, or vice versa in states where state sentencing rules are more draconian like Arizona). For exmaple, in California, when many pornography cases were misdemeanors, prosecutors would often turn over the evidence to the Justice Department for investigation and indictment. I would imagine that similar practices are fairly common in felon in possession and drug cases.

Additionally, I wonder if anyone has taken the time to probe more deeply into the receipt/possession distinction and the reason that it was offered. It was not clear from the legislative history when I first looked into it in 2007.

Posted by: Alec | Jan 20, 2011 11:12:44 AM

Alec, I agree they should look into it. Our prosecutor was in Northern VA and we did try to argue that it should have been a state jurisdiction not federal. If it was turned over to state, then charges would have been dropped because of a lack of real evidence. However, you have to turn down the plea and start the trial process in order to even file a motion that it should be state jurisdiction...that means put out a lot of money you don't have and see what happens. In our case, it was clear that the prosecutor was only interested in another conviction (making comments like we would rather a few innocent people go to prison, than one guilty one go free) since as soon as we agreed to a plea, he turned the case over to be finished by a new kid and he went on vacation! It was tough to accept. No good has been done at all. The most ironic thing is that there computer forensics said are computers were some of the cleanest they ever saw...you see my mother was sexually abused as a child and I grew up with someone who pretty much trusted no men. Her abuser should have been locked for life or worse! I am an extremely protective mother and have been very weary of the stuff on line getting on my computers and my husband was very good about making sure all the virus updates and such were done, except on my computer. I didn't want to lose recipes I was looking up and such, so I didn't want him to restart my pc all the time. However, now that he is not here to keep us and our computers safe....well, I have no clue what could get on my computer or if my wireless system is actually secure! Thanks Feds....honestly, I do believe there are a lot of of prosecutors out there who really want to do whats right and put away bad people, but it seems there are quite a few who really don't care if you did it or not. As we were told once they start the process, they really never drop it regardless of whether they may have gotten it wrong or not....

Posted by: Fixnrlaws | Jan 20, 2011 1:41:13 PM

sorry to hear your strory fix...but you are not alone....the number of american citizens railroaded by thier own government has run into the MILLIONS now..... but your DA is lucky!

if i'd been your husband after this statement!

" The kicker was the prosecutor said if he was found innocent, they would then come after me (the mother of three and a new baby 5months at the time)since they new it was my laptop in question! He would never let that happen."

He/she would simply have been DEAD! since one way or another i owuld have killed them before we left the confrence room. You threaten my family......you die! it's that simple and i dont' give a damn what your job! or uniform may be!

Posted by: rodsmith | Jan 20, 2011 7:46:31 PM

rodsmith, the thought crossed his mine more than once, but fortunately and unfortunately for us he is a good person and trying to make all the right and best decisions for his family. I believe he was more afraid of what I might do if this prosecutor tried to separate me from my children. We are much luckier than most people in the system. We have strong values and a strong family. He has support from a very large family that keeps in constant contact with him to just move us through this time. Hell, even his ex-wife helps me and my kids out...now if that isn't a testament to the kind of person he is, then I don't know what is. There are so many young men he sees especially on the drug charges that have no support and are disconnected from family. They will not leave the system learning anything, they will not get better, and they will not know how to do anything but be a criminal when they leave...and they all leave at some point!

Posted by: Fixnrlaws | Jan 20, 2011 9:59:15 PM

I would like to see total discovery done on all prosecutors and judges. The defendant can demand it in an informal way, by a letter to the judge. The defense lawyer traitor will never do that, to avoid any deterrence of the prosecution, to which it owes its job.

Posted by: Supremacy Claus | Jan 21, 2011 1:35:47 AM

yea but that's where he and i are diff. i'm not NICE...i'm a crazy wesst virginia hillbilly who got OFFICAL U.S. GOVT TRAINING...on how to kill quick and fast and quiet......

add to that my rule that if you make a credible threat to me or my family...YOUR DEAD! lol well 2 sec's after he/she finished that statment they would have been finished.... since i would consider a goosestepping nazi wannabe like this prosecutor a very CREDIBLE THREAT!

Posted by: rodsmith | Jan 21, 2011 8:03:48 PM

Thank you very much for keeping me up to date.

Posted by: Health Blog | Jan 26, 2011 7:48:38 AM

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