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March 25, 2012

Another effective review of federal sentencing severity for child porn downloaders

The Louisville Courier-Journal has this lengthy and effective article (and a few companion pieces) discussing a topic familiar to regular readers of this blog: the severeity of federal sentencing rules for those who download child pornography from the internet.  The main article is headlined "Are child porn laws unfair? Viewers' sentences can be worse than molesters'," and here are excerpts:

Born with spina bifida and dependent on a wheelchair, 26-year-old Jon Michael Fox cannot hurt a soul, his mother and lawyer say.  But after being caught with more than 1,200 images of child pornography on his computer, some of which he traded with others, Fox was sentenced in 2009 by a federal judge in Louisville to 14 years in prison — with no option of early release.

The Justice Department says that long sentences for offenders such as Fox — even if they have had no contact with children — are vital in slowing the demand for child porn and the abuse of children exploited in making it.

But Fox’s attorney, Frank Campisano Jr., called Fox’s sentence “ludicrous,” saying his client “never could be a threat to anyone, including a child.”  Fox’s mother, Kathy, said, “He could have killed someone and got less.”

The facts appear to back her up. In 2010, about 1,800 offenders sentenced nationally for child pornography crimes in federal courts received longer average sentences than those convicted of arson, robbery, assault or even manslaughter, according to the U.S. Sentencing Commission.

In Kentucky’s Western District, the average federal sentence for child pornography was twice that for drug trafficking. Offenders released from prison also are required to submit to longer periods of supervision — sometimes for the rest of their life.

Federal offenders in the Western District of Kentucky were sentenced to an average of 10 years in prison from 2006 through last year for downloading and trading child pornography. That was nearly four times longer than offenders in Jefferson Circuit Court got for sexually abusing children, according to Courier-Journal research.

Such facts help explain a growing chorus of critics taking issue with what they say are Draconian penalties for those caught with child pornagraphy — even as they acknowledge, as do Campisano and Kathy Fox, that it is harmful....

U.S. Chief District Judge Joseph McKinley Jr. of Owensboro has said in sentencing hearings that the penalties often don’t fit the crime. “This is the first time that most of them have ever been in trouble,” McKinley Jr. s aid of such perpetrators. “And then, boom, here they are looking at 16 years in prison for engaging in their dark secret in the privacy of their own home.”

Those receiving the longest sentences in Western Kentucky had prior convictions involving sexual contact with children — including one man sentenced to life in prison. But 56 of 70 had no prior history of sexual contact with children.

The newspaper’s review found only three cases over the five-year period in which an offender was prosecuted for producing child pornography. “By and large, we never get the actual pornographers,” McKinley said at a hearing....

Former federal prosecutors in Louisville say that penalties for child pornography offenses are inordinately severe. “These are horrible crimes, but the sentences are way too long,” said Kent Wicker, a former U.S. attorney now in private practice.

Brian Butler, another former federal prosecutor, who called the penalties “insane,” cited a client he defended, Arthur Wayne Kniffley, 37, who was sentenced in 2010 to 17½ years in prison for possession and distribution of child pornography.  That was more than three times the five- year sentence he got in state court 13 years earlier for molesting three children.  Kniffley told authorities that he viewed child pornography to suppress his urges to commit other acts against children.

Companion pieces to this lead article are headlined "By the Numbers: Child pornography vs. other federal crimes," and "Do viewers of child porn also molest?" and "Prosecutions of child porn producers are rare."

March 25, 2012 at 08:54 PM | Permalink

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Comments

"The Justice Department says that long sentences ... are vital in slowing the demand for child porn ..."

How is that working out?

Posted by: Huh? | Mar 25, 2012 9:25:00 PM

@Huh?

If one repeats a lie long enough it becomes true whether it is true or not.

The real tragedy is that all the resources that goes to persecute these type of individuals could have been spent on government actions that would have helped actual children.

Posted by: Daniel | Mar 25, 2012 11:31:43 PM

Yet another lawyer fiction.

Legalization reduces the rates of child sexual abuse, across several national studies. The government is the biggest subscriber and downloader, and keeps criminal syndicates in business. The prosecution keep prices high and provides a federal price subsidy to these child porn gangs.

If I were a member of a foreign criminal syndicate, I would buy some legitimate American businesses and funnel campaign contributions to re-elect district attorneys that promise to be tough on child porn, including its downloading onto government computers, and support the War on Drugs. To keep my prices artificially high. Nothing is ickier than the feminist lawyer downloading child porn for "professional reasons."

Posted by: Supremacy Claus | Mar 26, 2012 6:39:28 AM

That last sentence is sort of food for (controversial) thought). As I understand it, the belief with respect to mainstream pornography used to be (and perhaps still is among some) was that it encouraged the sexual abuse and rape of women. The somewhat limited research done on the topic, however, seems to suggest the opposite is true -- that it lessens the incidences of rape and sexual abuse.

What if what is true of adult pornography is also true of child pornography and pedophiles? And even if that is true I don't really know what to do with that information, because really legalization doesn't seem like the right course of action to take. Unlike with the participants in adult pornography, a child cannot be a participant as a child cannot consent. It is something interesting, however, to discuss, especially in light of our sentencing regime. As the article points out, many of these offenders receive more time than do offenders who rape and molest children, sometimes over long periods of time. Does that mean that our preference is for someone to molest a child as opposed to looking at an image of someone else molesting that child? Or is it, as lots of people have been saying, just that the sentencing guidelines for child pornography are badly miscalibrated?

Posted by: Guy | Mar 26, 2012 8:36:31 AM

This article indulges the often used comparison between sentences for CP and actual molestation despite the fact that any serious person familar with federal law knows that the discrepancy between these types of sentences is that the former is FEDERAL and the latter is STATE. It isn't that "looking" gets more time than "doing".

There may be some good reasons to reduce the CP guidelines. Then again, maybe not. But nothing is gained by rehashing this same tired argument.

Posted by: John | Mar 26, 2012 9:55:17 AM

John,

And so, depending on which sovereign chooses to prosecute, the disparity in sentencing makes greater or lesser sense? I would submit that the distinction is purely academic, especially to the person serving the time.

Cheers.

Posted by: Guy | Mar 26, 2012 11:50:02 AM

John: it simply isn't true that the distinction is federal vs state. That tends to be a commonplace distinction today because so much child porn is transmitted via the internet, but child porn laws were around long before the WWW existed. Child porn was transmitted via paper magazine or VHS tapes. All states have laws that ban the possession and transmission of child porn intra-state and those state statutory sentences are always far less than the federal sentences in every situation I know about.

Child porn gets federal prosecution because the sentences are longer there; simple as that. They could be prosecuted under state law (I've read about a few) but are generally not.

Guy: The problem is that there is no way to answer your question. There are no exceptions to the possession of child porn so how can any academic study the issue? There were a few studies done before SCOTUS outlawed child porn but there simply isn't enough data to say anything conclusively.

Posted by: Daniel | Mar 26, 2012 2:01:06 PM

Daniel:

I can't really think of a methodologically sound way to study the issue that isn't also illegal as hell. The only (methodologically sound) studies that I'm aware of on the issue seem to indicate little correlation between viewing and actual hands-on abuse, but say nothing of any causal relationship.

Posted by: Guy | Mar 26, 2012 3:02:14 PM

I agree that the fed/state distinction would be meaningless to the person serving the time or that person's loved one. Nor do I defend the fed/state disticntion. To the contrary, I think it makes the "predictability" of violating the law impossible for the average person. Of course it makes no sense that a CP defendant would get more time than a hands-on defendant.

But, as arbitary as it is, the reason that most CP defendants get higher sentences than most hands-on defendants is that the former are mostly prosecuted in federal court and the latter in state court.

So, I think any well-reasoned critique of the severity of CP sentences should avoid the CP/Molestation sentence disparity and instead address other matters.

Posted by: John | Mar 26, 2012 3:02:57 PM

John:

I think, even if you just go by sentences meted out in the federal system, there's still an argument to be had by looking at the disparity. According to the BJS, in 2006 the median prison sentence handed out in federal court for sexual abuse was 70 months, compared with a median sentence of 63 months for possessing child pornography. Even though the hands-on offenders generally got more time than did the CP offenders, the fact that they are within 7 months of one another I think makes the same point.

A couple other things to bear in mind, almost 15% of sexual abuse offenders received probation, whereas only about 3% of CP offenders did. Also, this data are dated now. More recent estimates put the average CP sentence upwards of 90 months.

So I do agree with you that when comparing state and federal sentences it's important to recognize that there are two different sovereigns with different sentencing rules. However, even just looking at the federal data, I think you can still have a well-reasoned argument with the disparity (or lack thereof) between CP and hands-on offenses in your tool belt.

Cheers.

Posted by: Guy | Mar 26, 2012 3:48:10 PM

@John:

I fail to understand your logic.

(1) There are dual sovereigns, each which evaluates the relative harm of doing vs looking differently.
(2) Prosecutors tend to go with the sovereign with the longest sentence.

How is that reality NOT a significant issue in any discussion regarding sentencing equality or proportional harm. Inter-sovereign equality is just as important, if not more important, than intra-sovereign equality.

@guy

"A couple other things to bear in mind, almost 15% of sexual abuse offenders received probation, whereas only about 3% of CP offenders did."

On of the more interesting aspects of this reality is victim's rights. There was a case near where I live where a man systematically molested two sisters over a ten year period. He was turned in by the girl's uncle. But the entire family, including the two teen age girls, pleaded for leniency. The result: he was given five years of probation and a n/c order.

It's obvious, of course, that with CP there is almost never any opportunity for such victim's impact statement to be had. While we've heard about the few victim's who do come forward to seek compensation, it's startling how few of them actually do. I've long wondered what would happen if one of the former children testified in a federal CP possession case that the public availability of the pictures didn't bother them. How would judge's treat that VIS vs a molestation VIS.

Posted by: Daniel | Mar 26, 2012 4:31:23 PM

Daniel:

That's a good point, esp. since the majority of contact offenders are people who are known to the victim either by virtue of being a family member or someone close to the family. Offenders in CP cases are, as you indicate, usually much more removed from the victim.

I almost wonder whether a federal court would entirely disregard the testimony of a CP victim if they said that it caused them no great psychological pain to know that there were pictures of them on the internet as anathema to what has been accepted as a natural an inevitable consequence of victimization. It strikes me that victims deal differently with their experiences, as I have with my own, and to suggest otherwise (as seems to the case) is kind of paternalistic (and would be harmless, but for the fact that it is often used as justification for meting out decades of imprisonment).

Posted by: Guy | Mar 26, 2012 5:03:53 PM

nice one guy!

"I almost wonder whether a federal court would entirely disregard the testimony of a CP victim if they said that it caused them no great psychological pain to know that there were pictures of them on the internet as anathema to what has been accepted as a natural an inevitable consequence of victimization."

But how about this statment from a CP victim!


"I was not damaged 1/10 as much by what this individual did than by what the STATE HAS DONE with it's 200 notificials of someone looking at a photo taken 20 years ago."

any bets they never let her/hiim NEAR A COURT!

Posted by: rodsmith | Mar 27, 2012 2:38:54 AM

Rodsmith, where is that quote from ?

Posted by: Pretzel | Mar 29, 2012 12:10:42 AM

LOL it was made up!

guy was wondering about one type of victim statemetn and i came up with an other that the prosecution would NEVER let near a court!

you must have missted the threads about another cp victim named "amy" which is what brougt it to mind!

Posted by: rodsmith | Mar 29, 2012 12:48:45 AM


What I have learned is; Undercoveragents still use deceptive tactics known as entraptment..
My husband who has no criminal history what so ever was chatting online with an agent over a three year period.
He recieved alot of spam mail with images to view if you click on it...
at one point the agent asked him to email one of those images to her... So he does... Then they charge him with distrabution of child porn.
Possestion of child porn...

I dont agree with his conduct.. it was inapropriate... however the agents should never entrap men who have no history of this behavior.

now he is looking at 5 yrs to life and he has cancer

He doesnt deserve a death sentince

Posted by: Gwendolyn | Apr 10, 2012 2:07:48 PM

I think everyone is missing the point. Convictions are based on evidence. And its easy to prove downloading of child porn. Especially when there are agencies that target repeate sex offenders to purchase the stuff. Rarely, is a pedofile or child molester going to incriminate themselves by having evidence, its all he said she said. Isnt that why rape is so hard to prove? Probably one of the hardest things to prove. But downloading porn? child porn? Thats easy to prove. As far as what I;ve seen with law in practice, they go after people they have evidence against.

Posted by: survivor | Dec 30, 2012 11:13:02 PM

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