Possession of Child Pornography Sentences Often as Severe as Sexual Abuse

The sexual abuse of children is a serious matter. Public discussion has most recently centered on the Penn State scandal as many within the media debate the proper punishment that should be served not only against Jerry Sandusky but against the university as well.

While this discussion is taking up media attention, another related discussion is gaining momentum among legal and legislative professional communities. This controversial topic focuses on the fact that over the past 22 years federal sentences for the possession of child pornography have increased dramatically and to the point where individuals with no prior criminal history can be facing sentences of up to ten or twenty years in prison for the simple receipt or possession of child pornography. Such sentences approach if not exceed those of people convicted of actually sexually abusing a child in state court prosecutions. These dramatic increases in the federal sentencing guidelines sentences for child pornography are not the result of any documented need for longer sentences but rather represent the cumulative effect of politically and morally motivated legislative changes championed by members of Congress pandering to their "tough on crime" constituents, instead of the fact that some individuals convicted of possession of child pornography are serving longer prison sentences than those who sexually abuse or rape a child.

Evolution of Increased Sentences for Child Pornography

These changes occurred over the past 22 years and are the result of Congressional action. The Federal Sentencing Guidelines first addressed the possession of child pornography in 1990. As originally written, the highest offense level of this guideline was level 12. After years of almost constant amendments to the guideline which raised both the offense level and added a variety of offense enhancement factors the highest offense level for possession of child pornography now can exceed 43- quite literally off the chart. In such a case a first time offender could be facing a guidelines recommended sentence of life in prison, limited only by the fact that the statutory maximum for the receipt or possession of child pornography is 10-20 years.

None of the many changes to the child pornography guidelines were supported by scientific data supporting longer sentences in such cases. Professionals and increasingly federal courts and commentators argue that there is no research to support that there are any potential benefits connected to increasing these sentences.

Although legally permissible, changes made through legislation which has no empirical data to support the more frequently questioned by the judges who implement the sentencing guidelines than those changed by procedures followed and recommended by the United States Sentencing Commission, the federal commission charged with implementing and analyzing the federal sentencing guidelines. As a result, judges administering sentences increasingly deviate from the guidelines. While perhaps courageous and just, this has led to the fact that nation wide sentences for similarly situated persons convicted of the possession or receipt of child pornography can vary widely.

Sentencing and Child Pornography Charges

The possession of child pornography carries a mandatory minimum sentence of five years imprisonment. The receipt of child pornography carries with it a mandatory minimum of ten years. Courts have noted there can be no possession without receipt, and so prosecutors have added leverage in making charging decisions and concessions when attempting to negotiate with child pornography defendants. With additional guideline enhancements added on for a wide array of factors a negotiated plea may often result in the first time offender serving the five or ten year mandatory minimum sentence. Many of the guidelines enhancements apply in routine cases not just extraordinary ones. For example, there is a two level increase for images involving children under 12 years of age. Similarly, the use of a computer increases the offense level by 2.

Although many government officials support reducing the guidelines they hesitate to vote against them. As former federal prosecutor Linda Dale Hoffa told reporters, "if you vote against these harsher penalties, the sound bite is that you're protecting child pornographers, and that could be the end of somebody's career."

As a result, it is unlikely the harsh penalties associated with possession of child pornography convictions will be reduced in the near future. This leaves it to the federal criminal defense bar to continue to argue that the sentences called for by the child pornography guidelines are wildly out of line with what actual empirical evidence demonstrates are sentences appropriate to such cases. After all the overarching goal of federal sentencing is to ensure that the sentence imposed is "no greater than necessary" to achieve the purposes of sentencing itself. Those purposes include not only imposing a "just punishment," but the rehabilitation of the individual as well. We all must recognize that those convicted of child pornography offenses will be one day released into the community again. Because of the extreme sentences which are often imposed in federal child pornography cases, it is important to take them seriously. If you or a loved one is charged with possession of child pornography, it is important to contact an experienced criminal defense lawyer to ensure your legal rights are protected.


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