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February 15, 2012

Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing

As mentioned in this prior post, today was the first day for two big full-day public hearings before the US Sentencing Commission in DC.   Today was "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing."

I suspect a lot of interesting testimony was presented, and I hope any reader who were in attendance might consider posting a comment with any notable observations.  Helpfully, the USSC has posted the submitted written testimony of the witnesses via links to the official agenda, and I just had a chance to review the joint submission by the witnesses from the Justice Department. There is much of interest in this testimony (and in all the other linked testimony), but I thought these passages were especially worth spotlighting in light of controversies over application of the current federal child porn guidelines:

We believe the sentencing guideline, U.S.S.G. § 2G2.2, poses some challenges to the successful handling and sentencing of child pornography cases.   This guideline has existed in its current version more or less since 2003.   Whether or not in 2003 it accurately calibrated the seriousness of the offenders, our experience today tells us two things: first, the guideline has not kept pace with technological advancements in both computer media and internet and software technologies; and second, there is a range of aggravating conduct that we see today that is not captured in the current guideline.  As a result, prosecutors, probation officers, and judges are often assessing these cases using a guideline that does not account for the full range of the defendant’s conduct and also does not adequately differentiate among offenders given the severity of their conduct....

[T]he Commission should consider whether § 2G2.2’s existing specific offense characteristics should be revised and consolidated to bring them in line with today’s reality, and whether new specific offense characteristics should be added to better differentiate among offenders based on their offense severity and risk to children.

There are several characteristics that could be taken into account in a revised guideline. The Commission could add a provision that addresses the harm caused by distribution such as that by P2P technologies.  The Commission could also consider adding specific offense characteristics for image severity that address images of bestiality as well as images of infants and toddlers.  As for the enhancement for the quantity of images, the image table might be revised to reflect the plain reality that offenders today can amass collections, not of hundreds of images, but tens, or even hundreds, of thousands of images.

The Commission could consider adding new specific offense characteristics to better differentiate among offenders, such as by accounting for offenders who communicate with one another and in so doing, facilitate and encourage the sexual abuse of children and production of more child pornography, as well as for offenders who create and administer the forums where such communication is taking place.  The Commission could also consider a specific offense characteristic that addresses the length of time the offender has committed the offense to distinguish those offenders who have gotten away with their crime for years from those who may have just begun committing these crimes.   The Commission could also consider recognizing variations in the sophistication of the criminal conduct to appropriately address the more technologically sophisticated offenders who might use multiple internet technologies to collect child pornography, or who might use sophisticated measures to avoid being detected by law enforcement, or who are members of a group dedicated to child sexual exploitation.  By considering these types of changes, the Commission could improve § 2G2.2’s ability to meaningfully differentiate among offenders based on the severity of their offense conduct and the risk they pose to children.

February 15, 2012 at 04:38 PM | Permalink

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Comments

How about somebody addressing the fact that in order to possess you must receive?????
How about the fact that anybody can send spam CP and by opening up that spam you get a mandatory 5 years for receipt???

Posted by: JS | Feb 15, 2012 4:49:28 PM

There should be a direct link between the punishment imposed and the State's objectives and it should be clearly shown that the punishment chosen will be cost-effective in accomplishing that objective.

Posted by: Tom McGee | Feb 15, 2012 5:57:44 PM

JS:

Do I have to open the spam message to be charged with possession? If I delete without opening can I be charged with receipt but not possession?

Posted by: albeed | Feb 15, 2012 8:01:33 PM

albeed,
They will try to charge you. They said my husband "received" 6 images. It was only after looking at the time logs and records to see when my husband was logged in that we found he wasn't even logged on when the additional 4 images were sent. The spam with the two images was deleted but had been opened. When we showed our attoney he got the gov to drop the other 4 images.
If they had charged possession my husband could have had an affirmative defense. (Less than three images possessed you can argue affirmative defense; you didn't want them) For Receipt there is no such thing as an affirmative defense. Receipt of even one image gets you 5 years mandatory min.

Posted by: JS | Feb 15, 2012 8:54:15 PM

The feds have their heads up there you know where on drugs, kitty porn and acca stackable sentenceing... Only gets worse, keep adding on to everything.
Oh well close enough for government work..

Posted by: Josh2 | Feb 15, 2012 9:37:55 PM

"For the remainder of my testimony, I will refer to child pornography as child sexual abuse images or child abuse images as this is the accepted international terminology referring to this memorialization of sexual abuse. This is a better term because it debunks the myths that these images reflect voluntary modeling, that they are predominantly digitally morphed, that they don’t reflect children but instead adults made to look like children and finally and perhaps most importantly, that this is a victimless crime."

This is excerpted from Dr. Cooper's testimony on victims, and I think it is spot on. Please let's banish the term "kiddie porn."

Posted by: domino | Feb 15, 2012 9:49:21 PM

okay, let's call it child sexual abuse images, domino. why does that make these penalties rational? why does it make them rationally related to the conduct of possessing them? why is a market-suppression punishment scheme sensible, when images, unlike drugs, which seem untameable by a market-suppression punishment scheme, can be sent with the click of a mouse. i don't get these images. every time i have to deal with even descriptions of them in the course of defending a client they make me nauseated. i believe in protecting kids, not some absurd rationale of freedom or man/child love. but the fact is a lot of these guys who possess or view the images are losers. if they don't live in the basement of mom's, they are older (i suspect, if we brain-scanned them, dementing) individuals. the better-designed studies find little link between possession or viewing and actually hurting kids. i'd rather send a few drones in to kill the evil mothers making the movies than lock up the losers, and i don't believe locking up the losers will stop the evil mothers. it just makes some of us feel better

Posted by: big bad wolf | Feb 15, 2012 10:07:58 PM

The government's submission appears to be designed to preserve the status quo of the existing guidelines as the 'low water mark' of sentencing range(s), and then argues for additional expansion of incarceration based on the factors they cite. They do not appear at all to address whether or the guidelines for a minimally involved offender are too much, too little, or correct. A number of recent posts made by Prof. Berman seem to indicate that the lower end of culpability is where much of the judiciary is having trouble. There is conduct that can represent the least possible thing one can do to run afoul of 2252, yet it is treated with much more disturbing conduct.

Concerned citizen

Posted by: BC | Feb 15, 2012 11:26:34 PM

My other question is that the statute seems to more closely equate receipt with distribution, when it seems that there is little to no practical difference in receipt vs possession. I don't ever seem to see this being discussed, although in the OJP SORNA guidelines, they do equate receipt and possession. If this is the case, shouldn't the guidelines and statute reflect this also?

Posted by: BC | Feb 15, 2012 11:58:29 PM

Certainly the quoted material makes me wonder if anyone at DOJ is actually trying to address the concerns that have been raised.

Okay, so you add a bunch of new factors without removing any of the old ones (except perhaps ratcheting down the number of images scale, I'm not sure if that item should be read as a ratchet down or simply extending the scale out further), given that the guidelines in their current form already bunch nearly every offender at the high end of the statutory sentencing range what would be the point?

Until they (DOJ) are willing to admit that someone looking at pictures, no matter how ghastly, is not as evil as the person who took the pictures I believe the disconnect between prosecutors and judges will remain.

Posted by: Soronel Haetir | Feb 16, 2012 12:35:19 AM

The prosecution is pretextual, driven by feminist lawyers and their male running dogs. I strongly urge innocent defendant to threaten their defense lawyers with physical violence unless they go after the prosecution and the buffoon on the bench. Do total e-discovery on all their personal and work computers. Refer all child porn found to the FBI.

Demand billing statements showing the federal government is the biggest downloader and subsidizer of recorded child sexual abuse.

The model of this feminist lawyer is the Inquisition. You have blasphemed by eating meat on Friday (a made up rule lobbied for by the fishing industry). You must go the stake. You can save yourself through a plea deal. Donate all your assets to the Church.

This scheme ended after the French Revolution, and 700 years. French patriots beheaded 10,000 high church officials. That is the model for the remedy for the plague of feminist lawyers besetting the nation, and seeking the destruction of the patriarchal family.

No lawyer sees the irony. Adult male homosexual sex has caused the spread of a disease that will assassinate 40 million people. The forbearance of the lawyer for this conduct has resulted in one of history's greatest holocaust, and the degradation of several African nations, by decimating their population of productive males. Instead this conduct is endorsed, immunized, and privileged by the Supreme Court. Possession of a few pictures results in decades of prison. We are in the Twilight Zone.

Posted by: Supremacy Claus | Feb 16, 2012 6:15:29 AM

Big bad wolf: Hear, hear. In my experience the losers-to-predators ratio is roughly 10 to 1 or less. It makes me crazy that prosecutors so frequently choose to shoot fish in a barrel rather than using those considerable resources to build a case against the truly evil people who take the pictures, run the trafficking rings, etc. etc. I don't defend the practice of looking at child sex abuse images, which like you I find nauseating and disturbing. But I do think it is more ethical and pragmatic to spend our scant resources tracking down the worst of the worst, the people who are actually doing awful things to children, than in bringing the full power of the government (and a heap of social scorn and isolation) to bear on the secondary market consumers.

Posted by: def atty | Feb 16, 2012 12:15:59 PM

def atty --

What percentage of the people you have come across got charged when they received the pictures strictly by chance or accident (e.g., by opening spam disguised as something else)? What percentage got charged only if the sought the pictures, and thus knew what they were getting?

If you were able to convince the AUSA that your client got the stuff by accident and never wanted it or sought it out, did the AUSA drop the case or proceed with it?

I'm not trying to start a fight here; I'm just seeing information.

Posted by: Bill Otis | Feb 16, 2012 12:34:06 PM

Typo 1: "...only if THEY sought the pictures..."

Typo 2: "...I'm just SEEKING information."

I really need to slow down.

Posted by: Bill Otis | Feb 16, 2012 2:16:17 PM

Possession of illegal "Internet" porn is a computer crime - not a "sex" crime. An individual should NOT have to register just for possession of Internet porn with the exception of someone that is in possession of first generation pictures (the person that actually exploited the child and took the pictures) and distributes/disseminates them freely.

Posted by: hadenuff | Feb 16, 2012 4:34:10 PM

def atty:

Did you read the entire DOJ statement or just the excerpt? Of course DOJ goes after the pedophiles and the ones producing the child sexual abuse images. They list just a few examples, and there are many, many other examples. In my district, we screen all of these cases and take only the aggravated ones precisely because our resources are scarce. We defer to the state way more than we agree to accept cases. I don't know what district you practice in, but in my district, we do go after the "truly evil people."

Posted by: domino | Feb 16, 2012 8:27:08 PM

i read def atty to be saying that the resources used in prosecuting the "loser" group would be much better spent going after the creeps who rape children and/or make movies of people raping children than on the folks they usually catch clicking on the pictures or the movies. that is, i think, a separate question from whether members of the loser group should ever be prosecuted. i can't speak for def atty, but i suspect that his experience is like mine---most in the loser group came to the sites that got them in trouble deliberately. it might be wise or utilitarian social policy to prosecute a few of those guys and widely publicize those prosecutions in the community to dissuade other losers, who don't want mom to know what they are doing. i understand that these are easy numbers for the government to show it is tough on child sex offenders. i understand that these are feel-good cases---both def atty and i find this stuff revolting and recoil from the very existence of these images. but as a citizen i also want kids to be actually protected and i don't think that prosecuting the loser element does anything to protect actual kids. i, as a citizen, want the government to spend the resources on a long investigation into the real villains.

that said, even if one thinks that what i call the loser element should be prosecuted, the punishment for the offenses is nuts. a recent example: our office represented a guy charged with possession of child sexual abuse images. he was, at the time he was arrested 23. he'd been sexually abused from 6 to 14. he struggled with depression and substance abuse after that. for whatever reason, he went looking for images on the net. he got busted. nothing happened. twenty six months later he got indicted. in that 26 months---in which we know they watched him, cause, for crying out loud, they watched him before---he did nothing. absolutely nothing. he lived with his family. he worked his little loser job. then he got indicted. he pleaded guilty. he was genuinely contrite. his guidelines came in above the stat max of 10 years. the dct gave him 10 years despite his post-arrest behavior and despite good pysch testimony, because this dct does the the guidelines---it's easy and it never ever leads to reversal. the issue, i think, is that the guidelines are irrational (at congress's insistence) and provide an eay way to be tough against people who are not the people we should worry about.

Posted by: big bad wolf | Feb 16, 2012 8:28:58 PM

domino, you must practice up north. in my experience, ausas in the south (in my circuit and district) do not go after people that anyone but committed believers would think are truly evil

Posted by: big bad wolf | Feb 16, 2012 8:50:41 PM

'hadenuff'

'Possession of illegal "Internet" porn is a computer crime - not a "sex" crime.'

A straight forward statement that should be evident to anyone with any common sense.

Posted by: native | Feb 16, 2012 9:06:48 PM

'big bad wolf'

'guidelines are irrational (at congress's insistence) and provide an easy way to be tough against people who are not the people we should worry about.'

and yet another well thought out observation. why can't our elected officials consider this before promoting these laws, well done...

Posted by: native | Feb 16, 2012 9:14:16 PM

big bad wolf:

I'm surprised in your case they just charged him with possession. Where I am, the standard charge is receipt, and I don't think I've ever seen a judge give a defendant less than 8 or 9 years for downloading since Congress modified the guidelines, and that's even after a steep downward departure/variance. On the rare occasion when the government cannot prove "receipt"--e.g., someone called in child porn to them and they could not show how it got on the computer--the usual sentence is five or six years. And they go after pretty much everyone they can get, as far as I can tell. The only time I've seen them defer to the state is when the CP downloader is also accused of sexual assault of a minor, because they know state prosecutors, juries, and judges will light those guys up.

Out of the eight or so child pornography cases I've handled in the last ten years, only one involved someone who had a history of child abuse accusations. A couple more had minor convictions for things like marijuana possession. The remainder were people who'd never been in any trouble before. Many lived with their parents, and most had been working in the same menial job for years. No one had any idea they were downloading this stuff. They were discovered because they left their share folders open in peer-to-peer software like Kazaa or Gnutella, so the government was able to see what they'd downloaded remotely. Virtually all of them confessed immediately, cooperated with authorities in showing where all the CP files on their computers were, gave them passwords, etc., all before they were even arrested. The few who managed to get a bond had no problems, reported regularly, attended the court-ordered therapy or obtained therapy on their own, had the support of their families. They all pleaded guilty.

I think what amazed me more than anything was that few of them even complained when told how much time they were looking at. Whereas my immigration clients react with outrage at the very notion they should be sentenced to a few months in prison for their third conviction for entering the country illegally, my child pornography clients barely uttered a peep when told they were facing 10 or 15 years for their first conviction, ever. If I recall correctly, only one ever appealed his sentence. Most of the consternation over the lengthy sentences came from their lawyer and their families.

I put it down to the personality type that tends to limit himself to downloading child pornography. I've had colleagues whose child pornography clients were much more "active"--taking surreptitious photos of minors, moving around to avoid registering as sex offenders, multiple marriages that dissolved under clouds of suspicion, enticing minors, etc.--and those clients tend to demand much more attention and involve much more litigation.

Posted by: C.A. | Feb 16, 2012 11:15:33 PM

"or who might use sophisticated measures to avoid being detected by law enforcement,"

No one caught onto this portion of the excerpt. The police/prosecutors HATE encryption. Adding sentencing enhancements for using encryption, which is perfectly legal, and indeed necessary these days to prevent invasions of privacy, is of those dangerous "police state" type rules that has more to so with government employees wanting to crush methods of citizen self-defense, as opposed to anything having to do with the severity of any criminal act.

Already, police try to play games with encrypted computers, refusing to turn them back over indefinitely, or wiping the hard drives without a court order permitting it, none of which is permitted under current law, but they hate encryption so much, it is very much a "guilty until proven innocent" system when they get their hands on anything encrypted.

Posted by: lawyerguy | Feb 17, 2012 6:45:25 AM

they would hate my computer them. even the enryption has been encrypted and the key code is regenerated every 24hrs. IF you don't know how to generate the matching key...your out of luck! and only place to find that is my head!

and the whole thing is mirror copied on both a scheduled and random intevials!

Posted by: rodsmith | Feb 17, 2012 12:11:38 PM

One of the problems is when you get 'caught' they prosecutor will tell you if you don't plead out they'll up charges. Who wants to go to prison 5 times longer than if you plead out? You still have the same crap to deal with. I have yet to see anyone brought up on cp charges where they went free. The public hates SOs and the prosecutor knows it.

Posted by: nakohichi | Jun 9, 2012 3:51:00 PM

nakohichi: Vertical overcharging is the most abusive of the two prosecutorial overcharging practices, the other being Horizontal overcharging. Theoretically, overcharging is impermissible but courts don't have the nads to dismiss cases where either takes place.

Posted by: Truth | Jun 11, 2012 11:03:37 PM

rodsmith: they would hate my computer them. even the enryption has been encrypted and the key code is regenerated every 24hrs. IF you don't know how to generate the matching key...your out of luck! and only place to find that is my head!

That reminds me of a foreign case where a guy had his computer encrypted, can't remember where. It was sent to the FBI, who couldn't get in either. Not sure what happened with the case.

What I think funny is that law enforcement implies that if you are using encryption you must be attempting to hide some type of illegal activity. I use it on my laptops because they are portable devices, nothing illegal about that.

Posted by: Truth | Jun 11, 2012 11:10:36 PM

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