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March 12, 2013

Notable debate in Wisconsin over new state child porn sentencing law

Regular readers are quite familiar with (and perhaps even tired of) the long-running debates over federal child pornography sentencing laws. But, as detailed in this local article from Wisconsin, headlined "New law limits judges' power in child pornography cases," similar issues and debates arise in states sentencing systems, too.  Here are excerpts from the article, which strikes all the usual themes concerning the impact of mandatory minimum sentencing provisions:

A new law intended to toughen punishment for those convicted of viewing child pornography is drawing criticism from court officials. 

In April 2012, state lawmakers passed into law a mandatory, minimum three-year prison sentence for the felony offense.  Under a clause in the old law, judges had the discretion to order lesser penalties depending on the circumstances of the case.

Rep. Mark Honadel, R-South Milwaukee, who sponsored the mandatory penalty, testified that judges were letting too many offenders stay out of prison. “Sentences of less than 3 years were meant to be issued sparingly but became the standard,” Honadel said.

State Rep. Jeremy Thiesfeldt, R-Fond du Lac, said the law was conceived as a way to provide consistent sentences for all offenders who commit the same crime.  “Prior to this, sentences were all over the map. In a judicial sense, this probably wasn’t the best way to operate,” Thiesfeldt said. “Anytime you can establish standards of fairness, that’s a good thing.”...

Fond du Lac County Circuit Court Judge Peter Grimm, who has worn the hat of a public defender and district attorney before his election to the bench 22 years ago, says judges need discretion in sentencing to ensure the punishment fits the circumstances of the crime and the criminal.  “These mandatory minimum sentences fly in the face of current judicial training in which judges are trained to use evidence-based sentences designed to let judges make the best decision based on the facts of the case,” said Grimm. “Judges should not be locked into a minimum sentence because the legislature wants to be tough on crime.”

Dodge County District Attorney Kurt Klomberg has mixed feelings concerning the new law. “The law does take discretion away from the judges.  The judge is no longer able to go below the minimum (sentence) even in the face of strong mitigating evidence,” Klomberg said.  “The prosecutor now has greater power in the sentencing process as the decision on the charge will be a decision on the minimum allowable sentence after conviction.”

Klomberg also recognizes that the new law could impact settlement in cases involving child pornography.   “The defendants in these cases are often willing to plead to the charges in hopes of convincing the judge to go below the minimum,” Klomberg said.  “Under the new law, there is no possibility, and it may result in more trials.”

Defense attorney and former Fond du Lac County District Attorney Michael O’Rourke disagrees with a one-size-fits-all approach.   “Each case and each defendant are different and judges should have the ability to fashion a sentence that is good for both the community and aids defendants in rehabilitation,” O’Rourke said

The former prosecutor says judges need discretion in sentencing to ensure the penalty doesn’t outweigh the crime.   “The retired 63-year-old with no previous record who went to an adult porn site and was browsing and clicked onto a site that includes child pornography and then looks at a couple of pictures is different than the person who may already have a record, or who is actively seeking child porn,” O’Rourke said.  “Some peer-to-peer sites will download thousands of images in seconds onto a computer and the individual has seen none of them.  A judge should have the discretion to consider that.”

Wisconsin’s new child pornography law offers one exception to the minimum sentence, Thiesfeldt said.  Several cases involving teens trading inappropriate pictures by cell phone prompted lawmakers to include a clause in which a judge can issue lesser penalties if the offender is no more than four years older than the child depicted.

March 12, 2013 at 12:18 PM | Permalink

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Comments

{sigh}

Posted by: Anon. #2.71828 | Mar 12, 2013 12:29:36 PM

"Several cases involving teens trading inappropriate pictures by cell phone prompted lawmakers to include a clause in which a judge can issue lesser penalties if the offender is no more than four years older than the child depicted."

Sexting is ubiquitous. Now a child porn offense. What if the offender is the child depicted? Just a lesser offense? Can one commit a crime against oneself?

Welcome to the Twilight Zone.

Posted by: Supremacy Claus | Mar 12, 2013 3:27:34 PM

SC raises an interesting point. If high school "sexting" is in fact ubiquitious, that raises some questions for sure.

I'm not trying to start a fight here with either side. I would just like to know if there are some specific and reliable (i.e., no-axe-to-grind) figures on how widespread this practice is.

Anyone know?

Posted by: Bill Otis | Mar 12, 2013 3:53:26 PM

Low end, under 10%:

http://www.ncbi.nlm.nih.gov/pubmed/22144706

Higher end, 30% in receipt:

http://www.amren.com/news/2013/03/sexting-high-among-black-hispanic-teens-experts-disagree-on-impact/

Personal favorite, Sexting using FBI blackberries:

FBI attempts to stem 'rash of sexting'

Feb. 22, 2013 10:17 pm

"We're hoping (that) getting the message out in the quarterlies is going to teach people, as well as their supervisors ... you can't do this stuff. When you are given an FBI BlackBerry, it's for official use. It's not to text the woman in another office who you found attractive or to send a picture of yourself in a state of undress. That is not why we provide you an FBI BlackBerry." - FBI assistant director Candice Will. The FBI has begun releasing internal disciplinary reports quarterly in attempt to stem what they call a "rash of sexting cases." CNN obtained these reports, which also contain accounts of a worker secretly bugging a supervisor's office, an employee engaging in a relationship with a drug dealer (now their husband) and lying about it when questioned, and another who had to be subdued by police after a drunken confrontation with a weapon at his mistress' house. All of the employees previously mentioned were fired.

Posted by: Supremacy Claus | Mar 12, 2013 7:30:02 PM

SC --

Thank you!

Posted by: Bill Otis | Mar 12, 2013 8:30:04 PM

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