Articles Posted in Child Pornography Sentencing in Federal Court

A Pensacola Criminal Defense Attorney walked out of the Federal District Courtroom in Pensacola on Good Friday relieved, joyful for his client and with a sense that a reasonable, federal sentence had been imposed in his client’s case by a judge that meted out appropriate punishment but also took into consideration the nature and circumstances of the offense and the personal characteristics of the defendant in a merciful fashion.

My client, Mark, (not his real name) was sent an email with a link to 23 different websites that advertised young love, teen material, etc. He clicked on the link and subsequently made the poor choice to subscribe to several different websites which contained “soft core” child pornography or erotica in the winter of ’06 (these sites did not involve sexual interaction with adults); one of sites, the most sexually graphic of the sites that did involve children interacting with adults, was being monitored by the Immigration and Custom’s Enforcement Division. One of the sites involved “hard core” child pornography, the others softer types of porn, however much of which was still illegal. Mark did not download the hard core child porn images but had subscribed to the site. A year passed before the Agents executed a search warrant on Mark’s apartment.

When Mark came to see me he was scared and very angry with himself for having looked at the these materials. We immediately scheduled him to be evaluated by an expert in sexual offenses, he then took a polygraph to show he had never had any involvement with children, the answers to the questions posed to Mark showed he showed no deception and had never had any inappropriate contact with a child. We then got him into long term therapy with Brett Turner, Psy.Ed., who is an expert in treatment of sexual offenders in Pensacola. More than a year passed before Mark was arrested and charged with one count of possession of child pornography in violation of 18 U.S.C. 2252. The sentencing guideline applicable to this statute is USSG 2G2.2. The government alleged to have found in excess of 600 illegal images stored on his computer. This increased his guidelines sentence five offense levels.

The internet has improved our lives in many ways. We can now chat with people all over the world, have information at our fingertips better than any encyclopedia sold in days gone by could provide, arrange travel ourselves, etc. – overall it can make managing our lives much more convenient. However, in the criminal sphere, is it is now possible for someone to commit a crime without leaving their home that could result in their spending the rest of their life in prison.

In federal courts in Florida and around the country, people, predominantly men, are being convicted of possession and distribution of child pornography resulting in extremely lengthy federal prison sentences. On the average, sentences imposed upon most of these offenders, who have little or no criminal histories whatsoever, are eight years or more. These offenders have not produced images or films, taken pictures of children themselves nor have they had any contact with child. In fact, according to forensic psychological studies, most offenders being prosecuted are not pedophiles. Most have little or no criminal history. Many offenders are men browsing pornographic web sites and downloading images of adults and underage, predominantly female, images. Some are snared by federal undercover investigations that subpoena records from credit card service provides such as Paypal to obtain lists of customers who subscribe to a particular website. Many of these illicit websites are located overseas. Others, who tend to more likely to be pedophile offenders according to the experts, are found in chat rooms having sexual explicit conversations or exchanging sexually explicit materials with individuals who they to believe underage but are actually undercover agents posing as such.

The federal child pornography guidelines have increased in their severity four fold in the last decade. The exact same offense conduct that in 2003 carried a 27 to 33 month sentence of imprisonment now carries a 78 to 97 month jail sentence. Although the guidelines are now only advisory after the U. S. Supreme Court’s Booker decision in 2005, most federal courts sentence within those guidelines unless they are presented with extraordinary factors and/or the nature and circumstances of the crime are unusual enough that the offense conduct does not warrant a “guideline sentence.” Because of the odorous nature of child porn, judges, like people, are repulsed by the offense itself making persuasive arguments for downward departures or variances from the guidelines difficult to obtain. A recent study conducted by the United States Sentencing Commission has however found that downward variances in child pornography cases are being imposed in 39% of the cases because even the courts are recognizing these guidelines are too severe. This doesn’t mean the offender is getting probation or merely supervised release – far from it. This only means the offender is receiving a sentence of imprisonment somewhat less than what the advisory guidelines calls for.