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February 12, 2012

Timely discussion of federal judicial concerns with guideline sentences for kiddie porn downloaders

Today's Boston Globe has this notable article on a controversial component of the federal sentencing guidelines.  The piece is headlined "US judges balk at rigid child porn sentences; Say guidelines often demand punishment beyond severity of crime."  Here are excerpts:

In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines....

Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography -- far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal.  The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. “As far as I’m concerned, there are some problems with the guidelines," she said in open court in issuing the sentence.

In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.

The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority.  A public hearing is set for Feb. 15 in Washington....

Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability.  But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences.  They say Congress -- and society -- have called for the toughened penalties for the crime.

“There’s been recognition nationwide that there’s been an epidemic," said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. “There is an exploitation [of children] that goes on every time those photos are shared."

Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003.  The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.

But within the legal community, there has since been a growing chorus of criticism from those who say the punishment is too great, even for such a universally reviled crime. “The sentences are excessive, and the issue is one that could be modified," said former US senator Arlen Specter of Pennsylvania, who has also served as a prosecutor.  He co-authored a journal in a law trade magazine in October calling for sentencing reforms.  “It’s important to justice.  But it’s hard to do, because child pornography is so highly emotional."...

Opponents of the guideline argue that the additional penalties -- known as enhancements -- are inherent factors in the crime, and unfairly increase the guidelines.  The guidelines, for instance, call for additional penalties if a computer was used in the crime, and for a further enhancement if the child depicted in the images is prepubescent or under 12 years old -- factors that exist in more than 90 percent of the cases, according to Sentencing Commission data.  Also, anyone using a file-sharing network could fall under the distribution category because their images are open to anyone, even if they do not purposely send them out.

With added enhancements for sadistic or violent images, and for increased penalties when more pictures are involved, a defendant could face a sentence of 20 years in prison for receiving child pornography -- higher than guidelines for crimes involving use of a gun or physical violence or abuse.

Federal prosecutors defend the length of prison time, arguing that it protects the young children who are the victims in such cases.  Lang acknowledged that the sentencing enhancements should be reconfigured to reflect the way the crime is carried out.  A defendant should face tougher penalties for running a chat group, rather than simply being involved in the chats, for instance.  Defendants should also face tougher sentences according to the ages of the victims in the photos.

Prosecutors argue that the public, and judges, should make no distinction between those who possess pictures and those who produce them, pointing to a case out of Milford in which the discovery of child pornography images led to the prosecution of an international child porn production ring.  More than 100 young children have been identified and removed from dangerous environments, according to prosecutors.

This companion piece in the Globe reports on a number of cases in which child porn offenders received sentences well below applicable guideline ranges.  As noted in the main article, the US Sentencing Commission has a big public hearing scheduled for this coming Wednesday to discuss these and related issues concerning the child porn guidelines.  I am especially interest to see what the Justice Department says to the USSC about these matters and how the guidelines might be modified to foster more judicial respect for the sentences recommended in these cases.

February 12, 2012 at 10:27 PM | Permalink

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Comments

I hate to help the defense bar.

1) Demand total e-discovery of the computers of the prosecutors, the FBI agents, and the judge. Report any child porn on them to the FBI. It was for work, it was for research. That's what every perp says, too. Let the FBI do its job, and track access to the material off work hours.

2) Demand a Daubert hearing on any harm done to the victims by the downloaders. The harms appear to be ipse dixits by dimwits on the bench.

3) Present evidence from many international studies that the federal government is the biggest subsidizer and promoter of child porn. Prosecution provides price supports to producers, and subscriptions by the federal government may exceed those of all other users combined.

Why will no defense lawyer ever do the above? They owe their jobs to the prosecutor, and want nothing to scare, discomfort, or deter the persecution. Most of the defense bar came from the ranks of the prosecution. After cases, they get together and drink to the stupidity of the public, allowing their simple minded scam. Any downloader who gets prison time should seriously consider suing the defense lawyer for gross negligence in legal malpractice. The above measures should become standards of due care for the defense lawyer.

Posted by: Supremacy Claus | Feb 13, 2012 12:13:52 AM

They also need to re-visit the Adam Walsh Act and start over, or better yet, pull the plug (it's a largely unfunded federal mandate anyway). It is the most ill-conceived, draconian and mean-spirited piece of legislation ever passed. It strips judicial discretion and bench power away from the judges in regards to the registry.

If a person is not deemed sexually dangerous or an ongoing potential liability to society, then what would be the point of wasting manpower and valuable resources monitoring and tracking someone who's only transgression is illegal Internet porn "sight crime." ? It's the Orwellian indoctrination that damage is collateral. You can't CONTINUE to castigate, vilify and demonize a group of people for what you think they "MIGHT" do. That's illegal!

Posted by: hadenuff | Feb 13, 2012 12:52:15 AM

"Prosecutors argue that the public, and judges, should make no distinction between those who possess pictures and those who produce them, pointing to a case out of Milford in which the discovery of child pornography images led to the prosecution of an international child porn production ring."

How's that again?

I don't get it.

Posted by: John K | Feb 13, 2012 6:52:48 AM

article: "Federal prosecutors defend the length of prison time, arguing that it protects the young children who are the victims in such cases"

me: where is the evidence that severe penalties for the posssession of child pornography images in some cases years after they are created helps the victims?

where is the evidence that severe penalties for child porn possession deter the creation of new child pornography images when there is little evidence that people are motivated to create child pornography images for profit and that instead people are motivated to create those images because they are pedophiles?

Where is the evidence that punishing receipt of child pornography more severely than actual contact offenses against children protects children?

Child pornography is a difficult area to set sentencing because the people who possess it are disgusting pedophiles who get off on the sexual abuse and rape of children - so there is a strong motivation to incapitate them so that they will not sexually abuse or rape an actual child themselves. However, because it is pretty clear that the actual sexual abuse of a child is worse and more harmful than the possession of child pornography which could have been created years before hand, the penalties should reflect the fact that a pedophile looking at child porn is engaging in a less harmful substitute for molesting or raping a child.

Because of that, I fear that if child pron penalties are so severe rather than looking at child porn, the potential child porn consumer will instead decide that molesting or raping his daughter or the little girl next door is likely to result in about the same sentence. Because the primary goal of punishing sex crimes against children should be to prevent new contact offenses, that makes me think that as disgusting as child pron consumers are they tend to be overpunished.

Of course, my cynical side also thinks that the real reason why federal judges care so much about the harshnes of child porn sentnecing is because the defendants are often upper class White people.

Erika :)

Posted by: virginia | Feb 13, 2012 7:13:34 AM

They really need to lighten up on cp yes some of the people that really needs to be locked up they need to get them.and the federal government
knows what is out on the web they need to remove it so people want be sent to federal prison. And I do agree
to doing away with the Adam Walsh
law. Just give us families a break with love ones that have been punished aenough it's bad enough that our love ones are in prison and away from their families.and has got a very sick little boy at home and is
a special needs child as well. And than they move your love one so far off that you can't go see him and than on top of that he was ordered to take that class for treatment but get this they aren't going to give him the class until closer to the end of his sentence. Let's fight for our love ones that aren't the ones that are really sick. That got on the wrong chat room and download something that landed him in prison.

Posted by: jimi | Feb 24, 2012 10:10:42 PM

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