« NYCDL amicus brief in Alleyne with an offense/offender kicker | Main | "Republicans a victim of safer streets" »

November 27, 2012

Congress passes bill to double statutory maximum for child porn possession

Thanks to a helpful reader, I just learned that late yesterday Congress passed a bill to increase the statutory maximum for child porn possession offenses from 10 years to 20 years.  Especially because child porn receipt already has a stat max of 20 years and because federal prosecutors often can (and often do) charge multiple counts of possession to expose a defendant to more than 10 years imprisonment under current law, I was not aware that anyone directly involved in federal child porn cases thought this stat max needed to be raised.  But, as this local report on the legislation highlights, the increase was part of a broader effort to give authorities even more weapons to go after child porn offenders:

A bill designed to protect children from sexual predators has cleared Congress and is headed to the White House to be signed into law. “With President Obama’s signature, this law will help to rescue the thousands of children suffering from unthinkable abuse,” said Congresswoman Debbie Wasserman Schultz, a Democrat from Weston, who sponsored the bill along with House Judiciary Chairman Lamar Smith, a Texas Republican.

The bill’s passage is one sign that Congress can still get something done, especially when leaders from each party push a non-controversial measure. The bill increases the maximum penalty from 10 years in prison to 20 years for child pornography offenses that involve pre-pubescent children, or those under age 12.

The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order. It gives U.S. Marshals limited subpoena authority to locate and apprehend fugitive sex offenders. The Child Protection Act also reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators who have arrested more than 30,000 individuals involved in child exploitation since 1998, Wasserman Schultz’ office reported.

The Senate approved the legislation on Monday night by unanimous consent. The House passed it by voice vote in August. “This bill ensures that the spread of child pornography online is addressed aggressively and quickly,” Wasserman Schultz said, “and ensures that investigators have every available resource to track down predators and protect our children.”

November 27, 2012 at 02:51 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017ee5ae209f970d

Listed below are links to weblogs that reference Congress passes bill to double statutory maximum for child porn possession:

Comments

Glad to see our elected representatives are hard at work tackling the hard problems.

Posted by: Anon | Nov 27, 2012 4:02:59 PM

Strange, I had not heard even from the most conservative folks that federal penalties for child porn were too lenient. And my own 30 years of experience as a defense attorney does not suggest otherwise. In fact, much of the recent literature and many statements of federal judges and the Sentencing Commission strongly suggest the opposite. Oh well, let's just keep making sentences longer and longer, and longer--to prove Professor's Tonry's thesis correct: "Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” See Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3

I know that the day will come when even my most conservative friends (and I have several) will say, "Hold, enough"! But that day is not yet here.

Posted by: Michael R. Levine | Nov 27, 2012 5:59:12 PM

'...reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators...'

more government agency job security through Congressional pandering

Posted by: Ed | Nov 27, 2012 7:05:05 PM

What a bunch of nonsense. This little press release is rife with self congratulatory code words regarding a statute that will not do a single thing to stop child exploitation.

For one thing, the increased penalty targets mere possessors, the lowest-level offenders, the ones least likely to have molested children or to do so in the future. It doesn't even target the producers or disseminators of child pornography. Are these idiots seriously suggesting that there are people out there who figure it's worth 10 years in prison to possess an image of child pornography, but 20 years is way too much time?

“This bill ensures that the spread of child pornography online is addressed aggressively and quickly." As opposed to what? In what alternate universe are federal authorities not aggressively and urgently investigating child pornography on the Internet?

"The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order." Huh? Since when were federal judges not able to issue protective orders against harassing victims or witnesses? For Pete's sake, harassing victims and witnesses is already a federal CRIME. Did no one think to point out 18 U.S.C. 1512 to Reps. Wasserman Schultz and Smith?

This is just a bunch of fluff that allows these guys to go back to their constituents and pretend that they did something, without actually accomplishing a single thing. And who's going to go on record as opposing it?

Posted by: C.E. | Nov 27, 2012 8:54:34 PM

The new statute is mostly showboating, I agree, but so are most of the comments here. The statute's practical effect will be next to zero. Raising the statutory MINIMUM would have been one thing, but merely raising the MAXIMUM is just fluff.

As has been pointed out, judges largely think that the PRESENT sentences for possession of CP are too high and, even more than for other offenses, routinely sentence at or near the minimum of the range -- and that's when they aren't giving downward departures. What is the realistic likelihood that the new, elevated maximum is going to get used more than a handful of times (and then only for aggravated cases)?

Right. Asymptotic to zero.

Both Congress and the defense bar are pretending that this statute will have any significant effect, each for its own deceptive and overwrought purposes.

Two pots calling each other black. You gotta love it.

Posted by: Bill Otis | Nov 27, 2012 9:11:15 PM

"The Child Protection Act also reauthorizes for five years the Internet Crimes Against Children Task Forces, a national network of investigators who have arrested more than 30,000 individuals involved in child exploitation since 1998, Wasserman Schultz’ office reported." Who could be against that?

Newsflash to our ignorant Congress, we are running a terrible federal deficit and we reauthorize and finance (I know Bill, it is a drop in the bucket compared to entitlements) a Task Force of dubious efficacy and nature. Just what we need, more LE sitting on their butts at the computer eating donuts and getting fat all the while enticing by any means possible (don't give me the legal definition of entrapment BS) mostly young geeky men trying to meet eager and willing females (above the age of puberty) which has been going on since time immemorial. I would like to see a study and report of who these 30,000 dangerous individuals really are.

I consider adultery to be an as serious issue (it effects wives, families and personal integrity), but since it affects the likes of Bill Clinton, John Walsh and numerous other politicos and media types we won't do anything about that, even though adultery is also against "the law" in many states. We don't have a crime problem as much as a cultural problem.

Posted by: albeed | Nov 27, 2012 10:17:32 PM

The new law will have an effect when you've negotiated a plea to a possession charge and the guideline exceeds 10 years. Now, the judge can impose a guideline sentence in excess of the previous statutory maximum of 10 years. Sometimes, such pleas are negotiated in recognition of a defendant's relatively low culpability or in an effort to cabin a judge's discretion in a situation where the prosecutor feels a trial may not be in the government's best interest (for example, where a victim may need to testify). Also, the law incentivizes certain defendants, who have only possessed but not received, to plead rather than go to trial when their guideline exceeds 10 years. So, it affects plea negotiations in a limited number of cases.

Posted by: Jay | Nov 27, 2012 10:18:22 PM

Bill:

"The statute's practical effect will be next to zero. Raising the statutory MINIMUM would have been one thing, but merely raising the MAXIMUM is just fluff."

In actual practice, you are wrong. I have handled numerous federal child porn possession cases. I have one on my plate right now. In every possession case, save one, the client's advisory guideline sentence was in excess of the statutory maximum of 10-years. Alot of judges I deal with are still guideline-centric and would impose, if given the authority, a sentence in excess of 10-years for a possession case. So the practical effect is much more than zero. Congress has effectively made their previously "mandated" guideines mandatory.

Posted by: ? | Nov 27, 2012 10:50:04 PM

Ironic. Stupid. Feminist.

The federal government is the biggest downloader of child porn. Without its wholesale business, producers would go out of business, given the rarity of pedophilia.

The penalties represent a federal price support for child pornography, making it more expensive and profitable.

The legalization of child porn has been proven to reduce the incidence of real child abuse across time and in several nations. So, the biggest promoters, and enablers of real child sexual abuse are the prohibitionists.

I would like to hear from the defense lawyers why not 1) demand total e-discovery of the computers of federal prosecutors and of the judges seeking the destruction of their clients, then referring all open and hidden child porn images to the FBI; 2) demanding Daubert hearings on the claims that downloading child porn causes real child sexual abuse, when the opposite is true; 3) if one's sexual preference is an inborn, involuntary trait, like homosexuality or heterosexuality, then these prosecutions are discriminatory, excluded from the umbrella of the ADAA (42 U.S.C. § 12211), they are irrationally so.

I believe that any defense lawyer failing to use these tactics should be considered inadequate and in malpractice. This is especially true of the first point, attacking the prosecutor and judge personally, seeking their personal destruction. To deter.

Posted by: Supremacy Claus | Nov 27, 2012 11:38:53 PM

GOD what complete and total FUCKTARDS! this is a complete waste of time and money. Should result in the immediate execution of any politician retarded enough to endorese or vote for it.

for the new state and federal crime of "Criminal Stupidity!"

as for this!

"The bill allows a federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated, and it imposes criminal penalties for violating a protective order."

Call me silly but i thought we already had laws that cover all of this at the state and federal lvl?

Posted by: rodsmith | Nov 28, 2012 2:18:56 AM

And here I was thinking the legislative rush to increase penalties on child pornography would abate given the push-back from the judiciary. I guess they need to start on something to put in their next round of campaign ads.

Posted by: Guy | Nov 28, 2012 7:07:31 AM

Jay - My question is how can you possess something if you didn't receive or produce it? In my opinion, there should not be a possession charge at all. Nothing magical appears out of thin air.

I think this is a terrible bill, especially since the USSC is suppose to be studying the child pornography sentences and making recommendations to congress in the next few months. What good is the USSC if congress is going pass knee-jerk, feel good laws with no data from that committee? A lot of judges are already sentencing below guideline. So now the defendant with a possession charge will feel good when he gets just 10 years instead of the possible 20? Is this another ploy to get people to plea so they don't get a fair trial which our constitution is suppose to allow us? It would have been much better if they would have passed a bill that targeted the producers of these images. Many end users are getting this from file sharing programs. When is the ISP and the networking company going to be held accountable for some of these getting through to people's computers?

I wish at some point our legislators would look at the data and make smart decisions in sentencing laws.

Posted by: Jill | Nov 28, 2012 7:32:04 AM

Jill:

This is only for legal jargon. Because images have an electronic identification that cannot be easily deleted from your computer records, even though you may have INADVERTENTLY received and deleted the "image", the electronic identification remains which will be used as proof that you received (but may no longer possess) the image in question. Thus our prosecutorial legal eagles (who think they are so smart), have fewer hoops to jump through to obtain a prosecution to demonstrate receipt but not possession, in addition to a possible possession charge.

I should have added the name of supposed adulterer Chris Hanson (sic) to my post at 10:17 PM, whose TV show contributed greatly to the continuation of this stupidity. Adulterers have to justify themselves as not being so bad in their own minds so they created a sub-class of sex-offenders in order to be able to live with themselves and consider themselves still virtuous, whatever that may mean to their miserable little lives.

Posted by: albeed | Nov 28, 2012 8:22:11 AM

? --

"I have handled numerous federal child porn possession cases. I have one on my plate right now. In every possession case, save one, the client's advisory guideline sentence was in excess of the statutory maximum of 10-years."

But the question is not what sentence COULD be imposed under the advisory (i.e. use-them-only-if-you-like) guidelines. The question is what sentences ACTUALLY get imposed, and the answer, in the great majority of cases, is, as I have said, either at or below the present guideline range. Thus, raising the possible maximum sentence is all but meaningless, since at present, the maximum sentence is almost never imposed. Raising the maximum sentence is like building ten more floors on a ten-floor building where no one goes above the second floor anyway.

It's simply more pretending to talk about what the sentence, with the new law, COULD be. Historical practice shows beyond doubt what it IS, which is the only thing that, at the end of the day, affects the defendant.

"Alot of judges I deal with are still guideline-centric and would impose, if given the authority, a sentence in excess of 10-years for a possession case."

Could you provide some documentation and specifics for your claim of what these judges "would" do? The USSC figures simply don't bear out the notion that judges are bumping their heads against the top of the range with any kind of frequency. Their actual practice is to the contrary.

I guess my whole point is that "guideline-centric" judges may well be out there, but the part of the guidelines to which they are centric is the bottom. Thus raising the top is nothing but an empty gesture.

Finally, since the defense bar knows this, it is well insulated against government "threats," during plea negotiations, to demand the new, higher maximum. But even if it were otherwise, the defense has the ready answer: Tell the government they're not interested in a bargain and go to trial. And if your client's behavior (i.e., collecting ten zillion images of an 11 year-old getting raped by a horse) puts him in a poor bargaining position, that is something to take up with him. Not everything is Congress's or the courts' problem.

Posted by: Bill Otis | Nov 28, 2012 10:37:31 AM

Child porn and minors having sex with teachers are two subjects that seem to get a lot of attention on this blog.

Posted by: Joe | Nov 28, 2012 11:38:29 AM

well bill guess what. This statment here just supports my side!

"But the question is not what sentence COULD be imposed under the advisory (i.e. use-them-only-if-you-like) guidelines. The question is what sentences ACTUALLY get imposed, and the answer, in the great majority of cases, is, as I have said, either at or below the present guideline range. Thus, raising the possible maximum sentence is all but meaningless, since at present, the maximum sentence is almost never imposed. Raising the maximum sentence is like building ten more floors on a ten-floor building where no one goes above the second floor anyway."

It's simply more proof they need to be removed from at a minimum the office if not life itself for criminal stupdity!

If the people would get fed up and start hanging fucktards who pull this shit...it would stop!

Posted by: rodsmith | Nov 28, 2012 12:16:17 PM

Joe:

That is because these laws are like the canary in the coal mine and tell us whether we are OK with the current "Witch Hunt" or prefer the "Living Constitution", whatever that is. Don't rely on the NCMEC for accurate numbers because they (as a quasi-governmental body) are in it solely for the money.

By the way, have you defined "child porn" or "minors (children) having sex"? It seems to be whatever the gubermint wants it to mean, including patting an underage athlete on the butt for encouragement. Have you seen the Foster's beer commercial on how to speak Australian for thirteen? I don't have a problem with the commercial but I am sure the majority of people do.

Posted by: albeed | Nov 28, 2012 1:36:23 PM

Can somebody please explain this Wikipedia article to me and give assurance that nobody is sitting in prison because of even one of these photos?

"Gross was the author of a controversial set of nude images taken in 1975 of a then ten-year-old Brooke Shields with the consent of her mother, Teri Shields, for the Playboy publication Sugar 'n' Spice. The images portray Shields nude, standing and sitting in a bathtub, wearing makeup and covered in oil. Two of the images were full-frontal. In 1981 Shields attempted to prevent further use of the photographs but in 1983 a US Court ruled that a child is bound by the terms of the valid, unrestricted consents to the use of photographs executed by a guardian and that the image did not breach child pornography laws.[4] In ruling, the presiding Judge stated: "The issue on this appeal is whether an infant model may disaffirm a prior unrestricted consent executed on her behalf by her parent and maintain an action pursuant to section 51 of the Civil Rights Law against her photographer for republication of photographs of her. We hold that she may not.[4]""

If you aren't familiar with the story of the photos, you will find it interesting that they were in a museum on display to the public until 2009.

Posted by: How did this happen? | Nov 28, 2012 3:37:02 PM

yep. She's also got a soft porn video out there she did underage as well that showed full frontal and back.

Posted by: rodsmith | Nov 29, 2012 1:15:17 AM

As a writer and a researcher I have spent the past month in immersion mode dialing down to the many young men in Florida who have been arrested for CP, convicted and sentenced to lengthy jail terms, and even stealthier probation-up to 20 years! Many of these college aged males had been file sharing, so no exchange of money took place, In some cases they had purchased pornography which 'contained' underage images. These are low level activities of surfing the internet.
There are no risk factors indicating that they are pedophiles whatsoever. The lack of any due diligence in the body of research and evidence to support that these convictions ruin lives of all involved. I have just returned from Florida where I interviewed mothers of these young men who were plucked from their lives by vulchers. Where siblings are collateral damage, and where no program or diversionary options are ever entertained. The cost to the state is enormous. The costs to savagely stopping short young citizens who were off to do greater things. Now their contribution to society will be nothing.

Posted by: Linda Patscot | Dec 3, 2012 4:58:20 PM

Linda,

My brother is one of those "men" in Florida sentenced to 20 years in prison for CP. I would love to hear about your research and writings from Florida. He is on his 2nd appeal. The COA vacated his original sentence and he was resentenced to 15 years. Still outrageous for me for someone who was only surfing the net with file-sharing software. It was wrong he downloaded and viewed it but the penalty seriously does not match the crime.

Posted by: V. Polcyn | Dec 5, 2012 9:42:03 PM

By the way, have you defined "child porn" or "minors (children) having sex"? It seems to be whatever the gubermint wants it to mean, including patting an underage athlete on the butt for encouragement. Have you seen the Foster's beer commercial on how to speak Australian for thirteen? I don't have a problem with the commercial but I am sure the majority of people do.

Posted by: e-papierosy | Mar 4, 2013 10:31:38 AM

I am happy that the Congress passed a bill to increase the statutory maximum for child porn possession offenses from 10 years to 20 years. This is just very right to punish people doing such wrongful deeds.

Posted by: Mozee Roldan | Mar 20, 2013 8:55:58 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB