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July 19, 2011

Seeking information on large number “other government-sponsored departures” in federal child pornography cases

Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced.  An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post.  Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.

As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1.  But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.

But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure.  (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.)   Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).

Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure.   I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.

These data and realities prompt a range of follow-up questions.  I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases.  I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others.  I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures.  I wonder if this trend will continue and expand to other kinds of cases.

I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand.  I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.

July 19, 2011 at 06:20 PM | Permalink


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I assure you there is a huge difference among the districts in all types of gov sponsored departures. And that is true adjusting for fast track. That's one of the many ways in which the USSG give prosecutors too much discretion because main justice has never had uniform policies. One of the majors areas of discretion is the filing of 851 enhancements ( not a USSG issue but you could substitute a number of Guidelines for this example.) Some districts file them as plea hammers - withdrawing them when a defendant pleads, others seldom file them some always file them and never waive them. That means some defendants get 10 year sentences while others identically situated except for geography get 20. Or some get 20 some get life. I believe in prosecutorial discretion , and many US Attorneys use it wisely, but there a ought to be a general uniform starting point even it is advisory like the USSG. This is one of the many reasons why district court judges need discretion.

Posted by: Steve Prof | Jul 19, 2011 7:09:17 PM

Professor Berman:

You are starting to count the angels dancing on the head of a pin. I would recommend that you start with a real foundation by researching the basic questions.

What is Child pornography (the old Coppertone Ad and/or baby bathtub pictures)?

Who provided the CP to the defendent?

Was this material obtained willfully or inadvertently?

Was any entrapment by government officials used in enticing the defendent.

Without these answers, your research may be of value to lawyers and DAs, but is meaningless to the country.

Posted by: albeed | Jul 19, 2011 10:56:43 PM

I wish I could give you some insight, but where I practice criminal defense law, I've only ever witnessed the government recommend a departure in one child pornography case (not one of mine), and it was a 5K1.1 recommendation. If I recall correctly, the judge "departed downward" to the low end of the original guidelines. It was an unusual case, where the Government believed two roommates were downloading CP, and after one was discovered, he ratted on the other.

Almost all child pornography cases are prosecuted as receipt cases here, meaning the defendants are subject to a minimum of five years. The minimum is academic, since the guidelines are written to ensure that the average first-time CP defendant who pleads guilty will end up with a guideline range bumping up against the statutory maximum. On the other hand, most judges tend to depart downward on the motion of the defendant if the case is limited to downloading CP with peer-to-peer software and there is no prior history of sexual abuse or criminal sexual conduct. They get there by various ways. One thing I've seen is that judges really don't like the 2-level increase for use of a computer, because virtually all cases involve computers these days. In the end, most first-time defendants end up with sentences around 8-10 years in prison, with supervised release ranging from 10 years to life. The Government usually advocates for a strict guideline sentence, and loses.

I, too, would like to know what these “other government-sponsored departures” consist of.

Posted by: Anonymous | Jul 20, 2011 1:18:28 AM

@albeed: Even defense attorneys will concede that the images that defendants are being convicted of are not "coppertone" images. The images that are circulating today involve rape of children and other heinous material. If you look at USSC data, you will see that most defendants get an enhancement for "sado/maschism" images. Also, the vast majority of defendants get an enhancement for having over 500 images, and I would say that it would be almost impossible to "inadvertently" download more than 500 images on your home computer, and happen to get caught by the feds! You would be a very unlucky individual, and I doubt there are 1800 such individuals a year. Sorry abeed, these aren't "innocent" people checking baseball scores online and miraculously thousands of child pornographic images appear in their hard drive.

Posted by: anon | Jul 20, 2011 9:12:25 AM

Hey albreed: Though I appreciate your interest in asking broader questions about whether some CP defendants are "really" criminals, anon is right that nearly all federal CP prosecutions involve many horrific images that defendants purposefully sought out (and often traded via peer-to-peer networks). Moreover, if any of the issues you raise are in play in a particular case, they may get reflected in these “other government-sponsored departures” (e.g., prosecutors might state in a plea agreement that the defendant had over 600 images, but that they believe the defendant's claim that some of these were acquired inadvertently).

Indeed, the fact that most of these cases involve many images is in part what prompts my inquiry: I am trying to understand just when and why fed prosecutors are willing to agree to below-guideline sentences here. My limited experience in these cases is like Anonymous: I generally see the government advocating for a within-guideline sentence. But data is now showing that in nearly 1 of every 7 cases, there is now an “other government-sponsored departure.” I hope someone can tell me more about this interesting phenomenon.

Posted by: Doug B. | Jul 20, 2011 9:39:07 AM

In the four districts that I have intimate personal knowledge of the government has never moved for a downward departure in a CP case. BTW Doug, the 600 images ( or any of the numbers used in the CP guidelines)are a very poor proxy for how much time a defendant spends looking at CP. The same forensics that can determine the # of images can also determine the more relevant question of how much time was spent accessing and viewing them. Obviously, as with the # of images the forensics cannot tell who was operating the computer and who was spending the time viewing the CP...but that is, surprisingly, not often the issue. I do recall a CP case in Florida where the defendant was blaming his cat for the file sharing.

Posted by: Steve Prof | Jul 20, 2011 11:15:28 AM

"I generally see the government advocating for a within-guideline sentence"
"the government has never moved for a downward departure in a CP case"

In the district I am familiar with, that is my experience as well. However, should you find the answer to the post's inquiry, it would be valuable information.

Posted by: DEJ | Jul 20, 2011 11:25:40 AM

In my district, after the government started losing reasonableness arguments and judges started varying downward, the government has started recommending a variance of two levels (to offset the universally applicable use of a computer) in receipt and possession cases for first timers.

Posted by: defendergirl | Jul 20, 2011 11:35:47 AM

Does an 11(c)(1)(C) sentence that is below the guidelines range count as being government sponsored? I have seen that more than once.

Posted by: Larry Allred | Jul 20, 2011 11:58:31 AM

"almost impossible to "inadvertently" download more than 500 images on your home computer"

Excuse me but one or two video downloads can easily be counted as containing over 500 images (i.e. each frame can be counted as an individual image).

Posted by: james | Jul 20, 2011 1:42:05 PM

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