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.
Also, the offender convicted of possession of child porn will not go to a federal “camp” but will go to at least a low security federal prison. He will also carry with him the stigma of being a person who committed a crime against a child to prison with him; people who enter the prison system fabricate a crime they committed so other inmates will be less likely to know why they are doing time to avoid retribution from other inmates. Also, the offender, when he is released from prison, will not only be on supervised release for what may be the rest of his life, but will also be classified a sex offender under the Adam Walsh Act and have serious restrictions placed on where he can live, who he can associate with and what jobs he can hold.
Peer to peer networking causes people to sometimes “unknowingly” distribute illegal images previously downloaded from the file sharing network. I worked on cases where people snared in child porn stings where they have set their computers to downloaded images on a peer to peer network system, like Kazaa or Limewire, while they are sleeping not knowing exactly what materials are being downloaded. What can happen is that they unknowingly download movies that include children. Once the movie is downloaded it is not erased from the hard drive of a computer by merely deleting it. It is there until the deleted material is overwritten by other material, which may never occur. Law enforcement can obtain IP addresses of customers of these sites and determine what materials have been downloaded and list such downloading in an affidavit for a search warrant as probable cause to search the person’s home and seize his computer and any other materials related to the alleged offense. An excellent resource for practitioners who become involved in internet pornography cases is Strategies for Defending Internet Pornography Cases
The child pornography federal sentencing guidelines are under attack by some district courts and other entities because legislation was “snuck in” that increased their severity without any empirical basis making an adjustment upward necessary. Generally, federal sentencing guidelines are formulated by the US Sentencing Commission based upon years of study and experience dealing with certain offenses. The amendments requiring four-fold increases to child porn guidelines did not receive this scrutiny because the amendments to the guidelines were attached to other legislation by a freshmen congressman at the recommendation by Justice Department officials. See Troy Stanebow Article “Deconstructing the Myth of the Child Pornography Guidelines”
Child pornography is a serious matter and efforts should be made to eliminate it entirely. However, guidelines that require, in many instances, sentences of 10+ years for someone who possessed materials, who has no likelihood of recidivism, who is a productive citizen, who has no criminal history and who will be strictly monitored the rest of his life is not reasonable in every case. Of course, albeit some congressman may believe this as well, it would be politically disadvantageous for him or her to suggest a more reasonable sentencing structure now that the guidelines have already been enhanced resulting in these draconian sentences.