Printed with permission from Lawyers in Springfield MO.
With the advent of the internet and increased availability of online pornography, perhaps the fastest growing area of federal criminal prosecution is possession, distribution and production of child pornography. With this renewed interest in prosecutions, federal sex offender laws lean heavily towards stiff sentences.
The internet has flushed out a class of offenders that was barely evident 10 or 15 years ago. These offenders share characteristics that are not common to many other law violators. People prosecuted for child pornography offenses are seen in every socio-economic group and across every educational stratum. They range from architects to career military men and women and even to paraplegics. Anyone who has the resources to acquire a computer and access to the internet is a potential offender.
The government’s response to these crime has in many instances not kept up with the crime. Sentencing considerations drive the outcome in these cases. Two factors in particular are important in determining the approach and results in these cases. United States Sentencing Commission Guidelines and mandatory minimum statutory based sentences affect these cases more than the determination of guilt or innocence.
In a federal prosecutorial world where 97.6% of all prosecutions are resolved by a guilty plea, the sentence truly is the thing.
Absent outright innocence, simple possession is usually the most desirable outcome. Conviction carries no mandatory minimum sentence 1 and allows counsel and client to focus on key individual attributes enumerated in Title 18, United States Code, Section 3553. This section of the code was virtually invisible during the years the guidelines were mandatory. However, section 3553 roared back to life after the United States Supreme Court declared that the application of the sentencing guidelines was discretionary rather than mandatory. 2 See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). This invited judges to conduct individualized sentencing by utilizing a whole range of subjective sentencing factors that were simply unavailable under the mandatory sentencing scheme employed under the sentencing guidelines.
Offenders found guilty or who pleaded guilty to distribution were subject to a 5-year mandatory minimum sentence or even higher guideline sentence. 3 Guideline sentences quickly grew in length because of a bevy of available sentencing enhancements. For example, United States Sentencing Guideline 2G2.2(b)(6) mandates a two level increase in sentencing guidelines if a computer (present in almost every case) is used. Similarly, the number of images on a computer holds the potential of increasing sentencing guidelines under U.S.S.G 2G2.2(b)(7).
These two factors are exhibit one in the argument that time has passed by some provisions of the sentencing guidelines. Not one in a hundred federal child pornography offenders commits his crime without a computer and it is extremely rare that a computer has only a few images – most have hundreds of images. Use of a computer and number of images are simply not useful in determining a guideline range, a fact that even the U.S. Sentencing Commission will admit.
Like possession cases, distribution cases are subject to 3553 sentencing factors so long as they don’t result in a sentence that goes below the statutory mandatory minimum sentence.
At sentencing, the law requires the judge to first determine the applicable sentencing range. The court’s determination of the guideline range sets the table for the court’s ultimate determination of the sentence. It is at this juncture that the sentencing guideline has its greatest influence on the outcome of the sentencing. While judges have the discretion of ignoring the guideline calculation for well founded reasons, most view the guideline calculation as setting the boundaries of the ballpark within which the sentencing game will be played. It should be noted that on occasion judicial discretion can be an unpredictable cudgel and can sanction sentences below and above the guideline sentencing range.
Practitioners representing defendants when faced with troubling guideline calculations will often turn to the argument that the reality of guideline calculations is that they lag behind current penological thinking and that the client deserves individualized sentencing rather than one size fits all machinations of computerized sentencing. Look to the soul of the defendant, not how many images were on his computer. Of course, this approach carries its own set of risks. An offender once rhetorically asked his sentencing judge during allocution: I’ve heard all of the bad stuff about me but what about the good stuff? To which the judge replied: Maybe there isn’t any. The balance of the hearing did not go well.
The government’s prosecutor who usually has the upper hand in guideline arguments will point to the statistical verities embodied in sentencing enhancements and argue that the experts who constructed the enhancements constitute some of the brightest minds on the
Production of child pornography occupies rarified air as one of the most despised crimes in the government’s arsenal of offenses. In part, it achieves this status because it moves the offender from passive observer to active participant and producer with entrepreneurial ambitions. Mandatory minimum sentences and high guideline calculations reflect the seriousness of the offense.
Production carries with it a mandatory minimum sentence of 15 years and a statutory maximum sentence of 30 years. Oddly, or maybe not, guideline calculations in production cases often exceed the statutory maximum to produce impossible sentencing recommendations. The impact of guideline calculations is also diminished because the nature of the crime speaks for itself and because the guideline paradigm is sublimated to popular ideas of punishment.
If there is a silver lining in these cases it may be that if the offender produced child pornography but did not widely distribute or sell it the court will take note and impose a sentence that is closer to the mandatory minimum rather than the maximum. Nevertheless, the reality is that this offense provides cold comfort for the offender and is an area where judges field little resistance to throwing the hammer down.
Can sex offenders be treated? Contrary to popular opinion there is evidence that sex offenders reoffend and are convicted of new crimes at a lower rate than other offenders. 4 As theses offenders become more will identified and residents of penal institutions, treatment regimens and statistical studies will no doubt give better insight into treatment. Anecdotally, there is some evidence that psychological factors like depression, bipolar personality disorder and other conditions may prompt viewing and possessing child pornography. Again, anecdotally, many charged with possession and distribution – especially first time offenders – do not fit the mold usually associated with the criminal class.
Because the focus on child pornography is a relatively recent event there is a lot that remains unknown about offenders. As is frequently the case, offenders who have the misfortune of being among the first of those prosecuted under new laws or renewed interest receive harsher sentences as compared to sentences handed down after a law has matured and benefitted the lessons of experience. From a practical point of view, it behooves practitioners to seek out research and developments that will undoubtedly appear as treatment modalities
1 Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years. 18 U.S.C.A. § 2251 (West).
2 We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1) (Supp. IV), incompatible with today's constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, § 3742(e) (2000 ed. and Supp. IV), which depends **757 upon the Guidelines' mandatory nature. So modified, the federal sentencing statute, see Sentencing Reform Act of 1984 (Sentencing Act), as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., makes the Guidelines effectively advisory Booker v. United States, 543 U.S. 220, 245, 125 S.Ct. 738, 756-57
3 18 USCA § 2252.
4 It bears particular importance to the discussion that the term “reoffend” is defined. Many believe when they hear the term, it means a new sex offense or at a minimum a new crime has been committed. In the byzantine world of federal supervised release “reoffend” can mean that a supervisee tested positive for marijuana or another drug. It might also mean that an offender failed to report a change in residence or missed a counseling session. In other words, “reoffend” may involve a host of considerations that the average person would not consider a new crime and certainly a large number, perhaps the majority, do not result in new convictions.