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February 27, 2013

US Sentencing Commission releases big new report on federal child porn sentencing

As reported in this official press release, this morning "the United States Sentencing Commission submitted to Congress its comprehensive report examining federal sentencing policy in child pornography cases." Here is more from the press release, which serves as a partial summary of the 468-page(!) report (which is available in full here):

Although still only a small percentage of the overall federal caseload, child pornography prosecutions have grown significantly during the past decade and now account for nearly 2,000 federal cases each year.  That growth reflects the increasing role of the Internet in child pornography offenses.  Before the Internet, law enforcement officers had significantly curtailed the child pornography market in the United States.

Significant technological changes in offenders’ conduct have occurred since the federal penal statutes and sentencing guidelines for child pornography offenses were last amended comprehensively a decade ago.  Child pornography offenders today typically use Internet technologies such as peer-to-peer file-sharing programs that enable offenders to distribute, receive, and collect child pornography images more easily and in greater quantities than when the current penalty structure was established.  Several penalty enhancements in the guidelines for child pornography offenses,such as use of a computer, now apply to typical offenders.  As a result, prison sentences for efendants convicted of federal child pornography offenses have almost doubled in the last decade to approximately five years for possession and 11 years for receipt and distribution.

Judge Saris concluded, “Because of changes in the use of Internet-based technologies, the existing penalty structure is in need of revision.  Child pornography offenders engage in a variety of behaviors reflecting different degrees of culpability and sexual dangerousness that are not currently accounted for in the guidelines.”

The Commission’s study found that approximately one in three federal child pornography offenders had a known history of engaging in illegal sexual misconduct prior to or in conjunction with their federal child pornography offenses.  Such illegal behavior ranged from sexual assaults against children to “non-contact” sex offenses such as soliciting self-produced sexual images from minors in on- line communication. The Commission’s recidivism study also concluded that approximately 7 percent engaged in illegal sexual misconduct after serving their sentences for federal child pornography offenses.  Both figures should be considered conservative because such offenses are underreported....

Judge Saris stated, “The Commission will continue to study child pornography sentencing practices, and looks forward to working with Congress on developing a sentencing scheme that serves to better distinguish offenders, thereby reducing unwarranted sentencing disparities in these serious crimes.”

All the pieces of this important new report are available via this link. The press release summary alone suggests there is considerable food for sentencing thought in this important new USSC report, and I am going to start my view by reading closely the 26-page executive summary available here.

I expect a lot more posts on this topic will following the days ahead. And in addition to digging into the substance of this report, I also will be keeping on eye on how federal officials in other branches and the media respond to what the USSC has to say.

February 27, 2013 at 08:58 AM | Permalink

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"Judge Saris stated, “The Commission will continue to study child pornography sentencing practices, and looks forward to working with Congress on developing a sentencing scheme that serves to better distinguish offenders, thereby reducing unwarranted sentencing disparities in these serious crimes.”

Here is a suggestion. The commission should recommend to Congress that they create a Risk Control Board, thereby handing off this part of the problem to a body that is equipped to address the question of risk on an ongoing basis in each case. Risk changes. No one can say today how dangerous someone will be in five years. Beyond this, when judges make risk determinations at a time when the problem is not fully knowable, they are forced to do so intuitively. We know from a great deal of research that intuitive decisions are often biased.

Risk control is an executive function, not judicial. We should no mix apples and oranges.

Posted by: Tom McGee | Feb 28, 2013 2:15:28 PM

There is a vast need for more facilities to help sexual offenders. There are some good people out there with addiction to porn that has, unfortunately, turned to child porn,for whatever reason. I'm trying to further educate myself in order to have a better understanding as my son, first-time offender (non-contact) is serving a 8.5 sentence, since the young age of 24 and just turned 26 this past December. He held a steady job and had friends, but was insecure and suffered from depression for years. My heart is broken, because he is a very loving, sensitive and a kind-hearted young man. I know the person he is and prison isn't helping him one bit. There aren't any programs for such addictions in prison. Very limited federal prison facilities offer sexual offenders help. Please, something has to be done to help not only the victims, but the offenders. I'm willing to stick my neck out to be of any assistance with this issue. Thank you kindly!

Posted by: SMA | Feb 28, 2013 10:59:06 PM

I completely agree with you SMA. My fiance is now awaiting sentencing. Even though the max he can be sentenced to for possession is 10 years, they are recommending more than that. It makes no sense. Like your son, he is a first-time offender with NO criminal history, no history of drug or alcohol abuse, no history of violence and no history of sexual abuse, either to himself or to others. There have never been any complaints brought against him for anything, no assault investigations or anything like that. He is 27 years old, and was for the most part able to live his life as a law-abiding citizen until recently.

Our financial situation has been very rough the last few years. We have had multiple issues with landlords and housing (one decided she wanted us gone after 5 months even though we had a year lease, and the other's house went into foreclosure less than a year after purchase). We couldn't drive and didn't have a car to do so anyway. We owned a small business which we launched in 2008 and ran successfully for about 2 years before the economy tanked and took our business with it. We were both unable to get jobs, and there was no unemployment or food stamp assistance for us. We moved to another state to live with my sister thinking the situation would get better, but it didn't. Despite multiple interviews we were still unable to get jobs. We were now unfamiliar with the area and found that trying to use public transportation was nearly impossible and very expensive (we spent $18 in one day just trying to get to the DMV and back). He was already suffering from a seriously untreated case of ADHD, which can affect one's judgement, rational thinking and of course focus. I feel that depression joined it, though we never had the money to have him evaluated or treated. It was during that really dark and rough time that his porn addiction turned to something more serious with the downloading of child porn.

He has never touched a child in his life, nor do we have children of our own to come into question. He never attempted to interact with children in an inappropriate way, nor did he ever attempt to create situations where he could be alone with them. There also aren't really any young children in our family. So he does not pose a danger to anyone, yet they're recommending 10+ years. And you're right, the prison system really doesn't provide treatment for sex offenders. A few scarce locations do, but it is not a widely offered service. How then would anyone logically expect someone convicted of possession of child porn to get the help they need so that they don't re-offend? Where is the rehabilitation? It's widely offered for drug offenders, but not when it comes to other types of addictions that are more psychological, and that isn't fair or effective. It makes me sick that self-righteous people talk so much about the risk of re-offense, but do NOTHING to ensure that re-offense does not occur. They're more content to treat every offender the same and give them all one-size-fits-all punishments that do nothing to get at the root of the problem. In most cases these people are depressed and a large number suffer from physical illnesses as well as mental ones. They need treatment, not a 10-year sentence that will aggravate the problem to the point of no return.

We have not gone to sentencing yet, and I'm looking to fight that 10-year sentence with everything I have. We have a LOT of evidence in his particular case to support that 10 years is well beyond the amount of time necessary to serve the purpose of sentencing in the first place, to show that he had already begun his rehab process before being taken into custody, and to show that he is not at all likely or at risk of re-offending. I can only hope that the judge we have is willing to truly look at this evidence and give him a fair ruling instead of going with the status quo.

Posted by: HopefulGAGirl | Mar 18, 2013 7:38:34 PM

My son is serving an 11 year sentence. He is into his 2nd year and is 33 years old. The on-line occurence happened in 2006! This is his first and only offense....He was going through a time of depression and talking with people on line in other states....They sent him lots of adult porn and in the process child porn....Some went back to them in the form of thumbnails....Cache files....The federal judge pointed out at sentencing that he did not take the pictures - did not purchase the pictures - did not sell the pictures - had a clean record - was a good citizen in the community - had a very good psychological report from a well-respected court psychologist - and he further said that if they had been in a state courtroom, he would sent him home on probation. The federal prosecutor would not drop below the guidelines because she said that he should be held up as an example. My very intelligent son who has so much to contribute to society is wasting away in federal prison, very depressed, feels threatened, is bullied, has been beaten and is drained from his very soul any dignity that he had. This excessive sentence has ruined his life, my life, his grandparents who he will never see alive again and affected his extended family and friends. His community would welcome him back with open arms. Can the federal government not differentiate between people who are a danger to society and those who are not. My son made an immature mistake that has cost him dearly. I would do anything to help him....Is there hope?

Posted by: KE | Mar 23, 2013 5:33:30 PM

My son's case is similar to the above except that he is serving - get this - 37 (thirty-seven) years in a high security Federal Penitentiary. He is 37 years old so that's like a LIFE SENTENCE in his case. Yet he is a First Time offender, never in trouble with the law (except for a speeding ticket when he was a teen). He was gainfully employed by New York State as a Clerk 2 in the Real Estate Department in Albany. He was intelligent and gifted except that he has ASPERGERS SYNDROME which made him socially awkward. He spent a lot of time alone playing those computer video games where it is all fantasy - when you "kill" the bad guy you press a button and start over, etc. Unfortunately he got sucked into this internet child porn stuff and found it fascinating - giving little attention to the fact that these children were REAL PEOPLE, not video game people. ALL the Child Porn which he down loaded and passed along (posted) were readily available elsewhere on the internet. (He posted 70 - which is meager compared to some). He created NOTHING NEW. He did not PRODUCE anything. He did not own a camera. He never touched a child. When he was arrested he told everything. (Asperger people don't know how to lie.) He cooperated with authorities from the very beginning. His remorse was overwhelming. The Judge was given 17 letters of support from family, friends, clergy and his supervisor at work. His court appointed lawyer built no defense for him. The District Attorney suggested 20 to 24 years but the Judge gave him 37 years and after release, when he is an old man, he must report to a probation officer weekly. Then he called my son a "MONSTER". I kid you not. It is in the court transcript. Even the DA was shocked, so much so that he later suggested to my son that he would try to find a reason to give him a "Downward Departure" if he continues to cooperate. My son has been in prison now for two years of the 37 and has periods of deep depression. He says, "Dad what did I do?" All that I have said is absolutely true with no exaggeration. It is all veritable. What is happening in America?

Posted by: George Schmidt | May 10, 2013 1:47:50 PM

My brother is serving an 8 year prison sentence for online possession of child porn. My brother was a model citizen Had a good job never in any trouble never touched a child, since my brother has been in prison he's been beat up had all of his teeth broke off spit on and treated horribly because he is a chomo I think these laws for first time offenders that have never touched or hurt a child are way to harsh congress needs to open there eyes and realize that there are good people in prisons too, they are not all bad My brother should never of had to go through what he has and suffer for making a mistake a click of the mouse to be redirected to a child porn site by federal agents.

Posted by: Big Sista | May 31, 2013 1:12:54 PM

Just like everyone else my fiancé is serving 10 years since he allowed someone else to use his computer while we were at work and out of town, the so called friend/roommate even had a report for touching an 8 year old girl in which my investigating, not the prosecutor or fbi agent is out free walking the streets and working at Lake City Ammunition Plant in Independence, MO. We were able to prove where we were when it all happened but if you own it you are responsible for what is on it and done with it. My fiancé worked hard to support our family of six in which we had no kids together, but he has always been loving, caring and kind hearted. Some of my friends and family who never liked him even got upset when he was arrested(now that says something), my oldest daughter is best friends with him and adores him like my other child. The sentencing is unfair for if you read a lot of the recent cases a lawyer got 6 months. First time offenders should not get the lengthy sentences. A man who molested 15 minors 25 years ago done 11 years and now convicted of cp is only serving 12.7 years. My fiancé is in FCI POLLOck and has checked into SHU for he was threatened by others he would be stabbed and because he cannot identify them and the officials refuse to allow him to look through pictures he cannot get verified to be transferred asap, not even the SSi guys will do their jobs. I pray that the guard who checks your loved ones in does not call him the prison slang chomo in front of people. The FBI agent was even caught lying on the stand, it's not about who the person I their past or anything it' about how many convictions, years etc a prosecutor can get under their belt. The Judge even told my fiancé he would of been better off if he was accused of molesting a child or robbed a bank for he would get less time. The judge did not like the sentencing and expressed it a lot and my fiancé made national news since it pissed off the prosecutor. Make sure the court probate person turns in the PSR correctly the first time for my fiancés dumb probate person is corrupt for she turned his in 4 months after the judge gave her 14 days and my fiancée had already been designated by then, now we are trying to get it all done plus she found a warrant for another person with the same name but different info and turned it in as my fiancés. also, she stated he had never had any surgeries she could verify for medical reasons, another lie for she didn't do her job cause I have all the info that was given to her. Politicians are corrupt as far as I am concerned and do not do what they say. I would rather live in Russia, Afghan or China at this point

Posted by: Angela Pennington | Aug 4, 2013 11:52:44 PM

I'm seeing a lot of people here making excuses for child abusers' and no compassion for the actual victims: the children in these images. Child pornography is not a victimless crime. These are real children who are being tortured.

What you are doing by making excuses for these abusers is called enabling... and it's probable that your excuses have helped make them into the lousy people they are. Because you are not a nice person if you view child porn. Having those desires is one thing... acting on them deserves to be severely punished.

While I absolutely agree with humane sentencing and the rights of prisoners, I think ten years in jail for victimizing a child sounds fair. Do you realize the life sentence of misery and the incredibly difficult road ahead of the victims? Do you realize that they may never recover from it?

Posted by: roxanne | May 7, 2014 2:32:09 PM

There is NO market for child porn(CP) period. If you can find CP so can the police. If you paid for CP on the net it would most likely be in the form of credit card, bit coin etc. and the police will find that also. My research has discovered from reading the myriad of arrests everyday for child porn that 99% is downloaded via person to person (P2P) software which the police can also detect. There is NO charge for downloading it other than your internet access fee. There is NO money to be made from child porn, period. The only way an alleged victim finds out their photo, video or both was viewed is when the government tells them so creating essentially a self filled prophesy.

Kitty Wolf of CautionClick.com says ever 60 min. someone home is being searched for child porn. Thousands are being arrested and prosecuted or not their lives are over; for what? The stigma follows them as they loose JOBS, friends, family, homes, cars for doing nothing more than look at a photo or video! One cant blame law enforcement including prosecutors for doing the job they were asked to do by the legislature. If that is the case isn't this where Judicial discernment should come into play? If your not actually not hurting a child you shouldn't spend one day in jail.

The laws were designed when there was a market via print and film prior to the internet. That market can now find it for FREE via P2P. What I also have found is over 90% of CP is actually INCEST or infamilial photos, videos or both. Less than 1% of child abductions are at the hands of strangers. Kids are being nothing more than being kids and they are going to jail for it sexting. It is a sad state of affairs with the government perpetuating Comstock's views.

All I ask is the reader think logically for just one minute. If front of me I have a voodoo doll I stick that voodoo doll with a pin and the person I curse is injured. CP Voodoo logic; Someone possesses a photo of a child, in the form of 0′s and 1′s in a computer file. When s/he looks at the medium, the individual depicted in the photo, video or both gets victimized and hurt. While I can appreciate that creating CP victimizes children, I cannot agree that looking for, viewing, or collecting child porn actually victimizes anyone. If you were to apply the same reasoning to any other crime, then looking at a photo of any crime would be re-victimizing someone.

Use that same voodoo logic and the same reasoning law enforcement uses and apply it to murder and terrorism. If anyone looks for, views images or video footage of 9/11, nazi war crimes, or autopsy photos, etc, they would be guilty of having re-victimized people viewed in that medium being a photo, video or both. Where was the child abuse industry when the bombs were killing thousands of children in Iraq and Afghanistan; now that my friend is child porn!! If the simple act of viewing an image of someone is harmful perhaps an appropriate punishment would be to simply take a photo of the perpetrator in jail, then set them free, but have some look at the photo that was taken while they were in jail.

Posted by: Frank Gillice BSc | May 20, 2014 2:53:58 PM

I am the mother of a real good man who is doing 5 years for receipt of child pornography. His life as he knew it is over.. if a person is caught opening a file and there is child pornography (whether he/she knew what the file contained is guilty of receipt of CP. I know my son and his remorse. I am also a survivor/victor of child abuse. I am compassionate to both sides. It makes me angry in all that I read, that the incarcerated are bad people. some are, but some are not. They too are victims to a growing disgusting industry through technology and the WWW. This is what needs to be attacked and addressed. My son became a victim himself and has NEVER touched a child. My son is hurting and he doesn't know what happened or how it happened for how long it had been creeping it's way into his good heart. How can he heal? May God Bless the children. young and old.

Posted by: robin | Jul 2, 2014 3:41:43 AM

I would like to add... If a 16 year old girl sends a photo of her breasts to her boyfriend through.. let's say texting.. her boyfriend receives it and opens the file. the authorities are somehow made aware of it.. the boy and the girl both are guilty of sending and receiving of child pornography. Rach holding a mandatory 5 year sentence. High schools over. they probably wont hold jobs when they are released from Prison and they have to register and child sex offenders. Are these "bad" kids? no, probably not.. just being kids..The laws really do need to be addressed.

I recently learned too that when my son get's out of prison, he will be ordered to "therapy" program.. this program has been designed to help control behaviors, but they are being individually altered by probation department and law enforcement by attached equipment to private parts and exploiting children in photographs to these former inmates to see if they have stimulation and use the results to place them back in prison. What gives them the right to exploit children.. do the parents know? what gives them the right to wave the drug in an addicts face and tell them don't touch or pour alcohol down the alcoholics mouth and tell them to now spit or swallow it.. what right do they have to encourage relapse to the process of healing and rehab they just completed during their sentence. Concerned mother and American

Posted by: robin | Jul 2, 2014 4:09:06 AM

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