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February 6, 2011

More effective media coverage of child porn prosecution and sentencing

The AP has this new article, headlined "Child porn prosecutions soaring," includes these notable statistics:

The number of federal child porn cases has exploded during the last 15 years as Congress passed mandatory five-year minimum sentences and federal authorities have declared such investigations a priority.

The FBI has made more than 10,000 arrests since 1996 and U.S. Immigration and Customs Enforcement agency reports a similar number of arrests since its creation in 2003.  The U.S. Department of Justice says prosecutions are up 40 percent since 2006 resulting in roughly 9,000 cases. In 2009, 2,315 suspects were indicted.

Local authorities across the country are also stepping up their child pornography investigations, which often require little more than a technically savvy agent, a high-speed Internet connection and so-called peer-to-peer software that millions of computer owners use to legally — and illegally — swap music, videos and other digital files.

The number of child pornography prosecutions is still dwarfed by drug and immigration cases that flood federal court dockets, but no other crime is growing at the 2,500 percent rate the FBI claims for child porn arrests.  The FBI predicts that the cases will only continue to grow as appeals courts approve their search and seizure methods.

In addition, the Bucks County Courier Times in Pennsylvania has this lengthy piece headlined "Sentences for child porn stir debate." Here are excerpts:

Nationwide, judges are sentencing child porn collectors below sentencing guidelines -- chopping a few years off what could be a decade-long stretch or more behind bars. Many judges are concerned that the guidelines are too harsh for someone not known to have actually touched a child, according to government data and a recent federal appeals court decision....

The sentences are stirring a debate about what punishment child porn possessors deserve. A defense attorney and a prominent psychiatrist said little proof exists that people who look at child porn molest children. They said therapy and supervised release -- not prison time reserved for violent criminals -- address the crime.

They said the federal guidelines should be closer to the guidelines on the state level, where it's not uncommon for a conviction on child porn to bring probation or a two-year jail sentence. For instance, Jason Piasecki, 32, of Upper Makefield, was sentenced in Bucks County Court to three years of probation last year for possessing 90 images of child pornography.

A local detective and a national victims advocate take a different stance. They said the federal cases are more serious and, therefore, deserve harsher sentences. And folks who view child pornography perpetuate the demand for it, leading to more abuse, they said....

Ernie Allen, president of the National Center for Missing and Exploited Children, said people who look at child pornography fuel the demand for it. He cited the example of new exclusive clubs that require people who want to join to provide new images of child pornography....

In 1997, the mean federal sentence for someone possessing, receiving or distributing child pornography was 20.59 months (less than two years), according to a study by the Federal Defender Organization. In 2007, the mean sentence was 91.30 months (more than seven years), a 443 percent increase, the study said.

Sentences in Pennsylvania county courts, which follow separate guidelines from the U.S. courts, have remained much shorter. In 2009, for instance, 37 percent of first-time child porn offenders in Pennsylvania were sentenced to probation, according to the Pennsylvania Commission on Sentencing. More than 50 percent of those first-time offenders got jail time. The mean sentence ranged from 5.4 months to 30.7 months.

Some related prior federal child porn prosecution and sentencing posts:

UPDATE I just saw that the Cincinnati Enquirer also ran a piece this piece this past weekend on CP cases under the headline "Child porn caseload rising: Feds making use of tougher laws." Here is an excerpt:

[A] flood of child pornography suspects [are now] in the nation's federal courts, where the number of cases per year has climbed from about 940 to 2,250 in less than a decade. Child pornography charges now outnumber more traditional federal crimes, such as bank robbery, embezzlement, bribery and money laundering.

The length of prison sentences is growing too, with 65 percent of those convicted last year receiving at least five years.  Defense lawyers and some judges say such steep sentences for looking at child abuse -- rather than committing actual abuse -- raise questions of fairness.

"It's a strange situation," said Kelly Johnson, a Cincinnati lawyer and former federal public defender.  "People can get a higher sentence for possessing photographs of a child than they would if they had actual sexual contact with a child." That's because charges of sexual abuse, which usually are handled in state court, are harder to prove and often end with plea bargains and less jail time.

The Cincinnati Enquirer also had this companion piece headlined "Feds: Child porn victims younger; violence rising."

February 6, 2011 at 01:40 PM | Permalink

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According to multinational data, the increase of pornography decreases physical sex crimes against real women and children. The producers are, of course, child abusers and rapists. Not so the viewers. One has to question the stated goal of these prosecutions, to protect children from abuse. They raise the prices. They motivate more production by horrid criminal syndicate, perhaps with ties to Islamic terrorists. The sheer amount has not decreased, but increased. Thank the lawyer.

The definition of childhood should be revised to under 14 years old, since that age is the biological landmark of adulthood in nature. The age of 18 has no particular significance nor any event in biology. And 60 year olds are more mature and knowledgeable than 40 year olds. If adulthood is to be based on maturity, make the age 90. We should accept the landmark of adulthood of the past 10,000 years of civilization, the age of puberty.

Innocent defendants should demand total e-discovery of the prosecutor computers, those of the police, their supervisors, and of the computers of the judge. The justification is to search for an improper motive or bias. Any child porn found should be referred to the FBI. As to the reply, it was for my work, that's what all perps say. Let the FBI complete their investigation without interference. To deter.

Posted by: Supremacy Claus | Feb 6, 2011 3:47:19 PM

SupremacyClaus, your post makes tons of sense. Just one problem. Who investigates the FBI??

Posted by: Jake | Feb 6, 2011 7:39:58 PM

Jake: A jury must, and only a jury can. All governmental self-dealt immunities should be repealed by constitutional amendment. Torts are opposed by Prof. Berman, but that is the only remedy outside of violent self-help. Although the government does nothing well, it is not its fault, but that of the politicians. So, picking on government workers is a bit unfair. The same people leave government, are paid triple, and get 10 times as productive. That means the people are not that bad.

Posted by: Supremacy Claus | Feb 6, 2011 7:48:45 PM

I keep hearing these stories over and over, but they never seem to be focused on people that have truly been screwed by the way the laws were written, per Congress. My husband sits in prison on a five year sentence for 12 pictures! We cooperated with the prosecution and let them check every facet of our lives, because we had nothing to hide. They found nothing, except 10 "basic" cp pics on my laptop in 1 file not listed as a picture file so we didn't know it was there. It's date shows to be the same time I had a virus on my laptop, that we of course got rid of (why wouldn't you get rid of a virus?). At the time of the search, his work laptop (after extensive searching) found 2 more pics that were known to be circulating since the 70's. It was in a corrupt file that we could not even access, but the FBI was able to get to. This laptop was connected to a network everyday in a company full of programmers, which my husband was not. It also was dragged to and left on trade show floors full of programmers often. Technically, per the law, he had more than 10 and less than 150 and the prosecutor could charge receipt (MM of 5), however in such a situation most would not do anything or go with possession. This prosecutor was hell bent on receipt and 5years and didn't care if it was justified or not and he could and the judge couldn't do anything about it. He had all the power. No checks and balance. With threats of coming after the mother of his children (because the prosecutor admitted it could have been anyone in our home, nothing tied to him directly), charging several more things they came up with that carried 10yr mins, and parading the bad guy they caught in front of jury that ran the site the pics came from (they cut a deal with him??), and the knowledge that juries almost always convict....we took the plea and hoped that common sense would come over the DOJ and Sentencing Commission and not allow crazy political law making to put all the power in the hands of career seeking prosecutors! It's been over a year and we still have nothing to latch on to and try to appeal 5yrs for 12 pics....God help this country when the law makers have screwed it up so royally!

Posted by: Fixnrlaws | Feb 6, 2011 10:48:59 PM

Bill/federalist:

Prove to me that you are human. Please respond (no straw men), to FixnrLaws's 10:48 post. If you don't, all that you claim to possess (a legend in my own mind) is a fraud! Let me check your computer for what happened to her.

Posted by: albeed | Feb 6, 2011 11:16:40 PM

Fix: Remember when they lynched a black boy for whistling at a white trash woman walking by? It's like that. Feminism is our KKK. Both are just assumed in their time. Both will seem reprehensible 100 years later. Both were founded and run by the lawyer and judge. Both were immune for its atrocities. Before we get too huffy about the 5000 public lynchings, remember the 500,000 third trimester abortions of viable babies of our time, and the 500,000 excess number of black males murdered under the management of the criminal law by the lawyer. Both had business plans, to confiscate assets of prosperous blacks and Jews. They got prosperous by successfully helping others with their needs. Both had legal immunity, and thrived. When Grant enforced the KKK Act and lynched dozens of KKK lawyers, they shrank, and black folks thrived under the rule of law.

Unless the defense lawyer demanded total e-discovery of the prosecution side, he was weak. That may not have been from poor intellect or lack of knowledge. The defense does not want to scare the other side. He owes his job not to the client, but to the prosecutor. So hurting the prosecution too badly will never happen, unless he is terrorized himself by another lawyer malpractice specialist. All defendants need 2 lawyers, one for the defense, the other to terrorize the defense lawyer traitor into doing an adequate job.

The prosecution wins a verdict 75% of the time plus. That same track record is true when the defendant serves as his own lawyer (pro se). That means the defense lawyer is not better than an uneducated criminal in court.

Posted by: Supremacy Claus | Feb 7, 2011 2:44:06 AM

"[Ernie Allen] cited the example of new exclusive clubs that require people who want to join to provide new images of child pornography."

The plural of anecdote is not data. Yes, a few of these clubs may have existed, but the entire premise is flawed. The great allure of online file sharing is that everything is available for free. Why would you join a club that requires such a steep payment when you can get all the benefits for free?

In fact, such sites sound exactly like a FBI honeypot. I'd be willing to bet that these new clubs that demonstrate the escalating market are run by the same people demonizing them.

Posted by: NickS - student | Feb 7, 2011 8:41:43 AM

I do understand what you are saying SC. My husband is a very intelligent man and well educated. Through our entire journey through the justice system we came face to face with the enormous amount of flaws! The fact that this case could have been a state case and they would not have even brought charges, but the feds are so persistent these days in over stepping there boundaries and then manipulating/taking advantage of poorly written laws to claim everyone for themselves. Prosecutors have been given an unbalanced amount of power, that yes, even while trying to fight for a client the defense doesn't want to push to hard because they can cause a great deal of problems for them on future cases. At every step of this process my husband dealt with government officials that actually liked him and put there two cents in where they could, but in the end none of it matters due to the control of the prosecutor. We have to believe that the injustice this prosecutor is dishing out will come back to him one day. And Yes SC, I would love for his computer searched and prosecuted for what is on it!

Posted by: Fixnrlaws | Feb 7, 2011 8:49:07 AM

Good advice from a lawyer. Never, ever talk to the police about any substance.

http://www.youtube.com/watch?v=6wXkI4t7nuc

Any exculpatory statements to the authorities are hearsay, and excluded. Any incriminating statements are usable. Even exculpatory statements may be used to generate incriminating evidence. There is an infinity of rules, laws, regulations. One does not even know when one is breaking some law.

If anyone has watched the First 48 Hours, just about all murders that get solved are by confession. Some of the confessors may also be innocent, but the job of the police has been done, and they don't care about anything else.

This rigging by the government for the government, the careers, not the safety function of the government.

Posted by: Supremacy Claus | Feb 7, 2011 9:39:51 AM

Sadly, another American, fixnrlaws, has discovered how the system actually functions.

To SC's "never ever talk to the police about any substance" link I would add I've resolved to never consent to a warrantless search or an interview with law enforcement unless my attorney is present.

Were I to be charged with a crime (something I once considered an absurdly remote prospect...but now see as an almost random possibility capable of befalling virtually any of us), I'd seek representation from outside the district...for the reasons SC suggested: playing hardball with local prosecutors can come back to haunt aggressive hometown defense attorneys.

I wish one of the hardliners who post here would assume arguendo fixnrlaws' story is accurate and explain how destroying her family under the circumstances she outlined protected any child or otherwise aided the cause of justice.

What I expect instead is Bill Otis taking refuge in the fact we've only heard fixnrlaws' version and not the prosecutor's invective-laced charging statement steeped in incendiary rhetoric...all designed to make fixnrlaws husband appear to be the biggest threat to children since the Pied Piper.

Posted by: John K | Feb 7, 2011 7:05:47 PM

Hey, fix, we have a lot in common. My husband sits serving a 5 year sentence for Receipt of 2 pictures. Crazy guy in another state got his e-mail address and sent a series of pictures both legal and illegal. They came to our house and took our computers, family pictures, all my work files and the indictment didn't come until 8 months later. In the mean time my husband quit his job and went to counseling, thinking they would approve. No, they said he just did it for appearances!!!
ALSO, they would have charged him with Receiving 6 pictures but because we went over every document with a fine tooth comb, we pointed out that he wasn't even online when the other 4 of them were sent!!
We have 3 young children, 2 of them are developmentally disabled. Is this how the DOJ thinks it is protecting children??

Posted by: Jo | Feb 7, 2011 9:03:39 PM

The DOJ isn't interested in protecting children. It's interested in building careers... turning prosecutors into judges, appellate judges and, ultimately, legislators...on the backs of people like you and fixinrlaws.

Posted by: John K | Feb 7, 2011 9:10:43 PM

I'd like to see case names and numbers for the examples listed here. In my experience, the DOJ lets the states prosecute cases of CP in small numbers, like 2 pictures or 12 pictures. Granted, my experience comes from a large metro area. In that district, the DOJ prosecutes only the larger scale downloaders, or defendants with fewer photos/videos who are teachers, school bus drivers, etc. Or defendants with prior convictions. Everything else is left to the state.

Posted by: Domino | Feb 7, 2011 9:53:17 PM

Jo:

No, that is how Congress thinks they are protecting children and the SCOTUS remains pompous pawns in this outrage. Remember, most judges come from the prosecutorial function because they could do nothing better.

Posted by: albeed | Feb 7, 2011 10:02:20 PM

Dr: Berman

There is something "strange" going on in our DOJ (and Homeland Security). The largest source of CP is the DOJ/FBI, followed by the NCMEC. These are the providers of CP.

I would still like to see a definition of CP that stands the test of time. If a female appearing at least 16 years old is naked from the chest-up and is smiling and that is considered CP or if a female who is obviously below 14 years old and is fully clothed but beaten to a pulp are considered OK, and if they are considered as considerably different crimes, favoring increased punishments on the former, we are in deep trouble that we may never be able to extricate ourselves from.

I use to love my country. But now, I fear my government more!

That is why we are broke!

Posted by: albeed | Feb 8, 2011 12:38:04 AM

""Feds: Child porn victims younger; violence rising.""

If a law has an effect opposite to its purpose, shouldn't it be paused?

Posted by: Supremacy Claus | Feb 8, 2011 8:09:16 AM

Domino says "DOJ prosecutes only the larger scale downloaders, or defendants with fewer photos/videos who are teachers, school bus drivers, etc. Or defendants with prior convictions. Everything else is left to the state."

Teachers, school bus drivers, clergy, law enforcement,ambulance drivers, amubulance chasers....everybody except those who work at the Pentagon.
BTW...what if the above listed have CP in small numbers and a construction worker has CP in small numbers. DOJ prosecutes the teacher/driver/clergy but not the construction worker. Isn't that selective prosecution?
Domino, Fix and I aren't saying there shouldn't be punishment but these are cases where the Prosecuters step in and charge Receipt instead of Possession. Receipt then gets a Mandatory Minimum of 5 years. They seem to be decisions made on the whim of a prosecutor rather than letting a judge decide the sentence.
If you want cases and names, go through the paper or your local DOJ web site adn get names, then look up in Pacer. You'll find a military recruiter who Received 5 pictures, a retired electrician who Received 15 pictures.....

Posted by: Jo | Feb 8, 2011 3:13:24 PM

Jo said: "Teachers, school bus drivers, clergy, law enforcement,ambulance drivers, amubulance chasers....everybody except those who work at the Pentagon.
BTW...what if the above listed have CP in small numbers and a construction worker has CP in small numbers. DOJ prosecutes the teacher/driver/clergy but not the construction worker. Isn't that selective prosecution?"

First of all, what does the Pentagon have to do with this? Second, the DOJ has limited resources and decides to use those resources to go after the worst of the worst CP downloaders, which includes those who choose jobs that put them in close contact with children. That may be selective prosecution, but the reality is that if they have to choose between a teacher and a constructive worker, I'd rather have the feds prosecute the teacher and let the state prosecute the constructive worker.

Albeed said: "I would still like to see a definition of CP that stands the test of time. If a female appearing at least 16 years old is naked from the chest-up and is smiling and that is considered CP or if a female who is obviously below 14 years old and is fully clothed but beaten to a pulp are considered OK, and if they are considered as considerably different crimes, favoring increased punishments on the former, we are in deep trouble that we may never be able to extricate ourselves from."

Please read the article linked at the bottom of the page, titled "Feds: Child porn victims younger; violence rising." The CP prosecuted by the feds are photos and videos of little children being raped, tortured, bound, and forced to perform oral sex on adults, not smiling 16 year-olds.

Posted by: Domino | Feb 8, 2011 8:44:04 PM

Domino, the Pentagon was in the news several months ago because this story came out..Do a google for Pentagon and Child Porn, here is a sample of what you get.
"In 2006, the Immigration and Customs Enforcement agency came up with a list of more than 5,000 Pentagon employees suspected of viewing child pornography. The Pentagon was asked to review the list, but only checked about two-thirds of the names.
Pentagon investigators came up with about 300 defense and intelligence employees who had allegedly looked at explicit images of children on their work or home computers.
The investigators left 1,700 names on the list unchecked, defense officials have told Grassley."
You are wrong about the smiling 16 year olds. There is no list saying what gets prosecuted and what doesn't, it is about the judgment of the arrogant prosecutors whose lily white morals are easily offended. It is like George Carlin and the 7 dirty words and nobody know what is exactly CP and instead of getting censored you wind up in prison. But, if Child Porn Victims are younger and violence is rising, what does that say about how effective it is to punish end users instead of putting all efforts into finding producers???

Posted by: Jo | Feb 8, 2011 10:20:59 PM

@Fixnrlaws

I was in a much similar position many years ago when there were no mandatory minimums. Images were emailed to me and I promptly deleted the email. I didn't not know much about computers at the time and, knowing what I know now, I never would have opened the email.

During the execution of the search warrant, a family member witnessed the Federal Bureau of Instigations agent placing a floppy disk into the PC and nine months later I was indicted and over-charged on two counts, one of which was dropped several months later. I don't recall how many images were said to have been found, but know it was less than 16.

I unknowingly had a criminal for an attorney - who was worthless - I found out that he had been in the federal clink in the early 90's for tax evasion when he was indicted this past summer for... tax evasion. To make a longer story short, I was persuaded to take a plea and I served just over a year, but would have received probation as a first-time, non-violent offender if it had been the state.

Posted by: Huh? | Feb 8, 2011 10:50:23 PM

@Supremacy Claus

"If a law has an effect opposite to its purpose, shouldn't it be paused?"

The majority of laws have an effect opposite to its purpose. What would be gained by "pausing" them? Wouldn't it be better to treat each violation on a case-by-case basis and let judges do what we pay them to do?

Posted by: Huh? | Feb 8, 2011 11:00:54 PM

Dear Huh:

You are absolutely, positively, undeniably and most reliably (and constitutionally) correct!

But somewhere along the way, Congress (throw up)! (Looking at all of them, it is easy to do)), decided that they, in their political posturing (which Bill did not oppose to obstruct his pension), in abettance with the main stream media, to get elected (again?) resulted in fascism.

You should sue everyone and everybody. But only as a distraction, as we will keep pressure on our represetatives to stop the shit!!!

Each case should be treated on CASE BY CASE basis.

Posted by: albeed | Feb 9, 2011 12:43:17 AM

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