Sentences for child pornography offenses in the federal courts have skyrocketed over the last decade. While child pornography offenses are not “victimless” crimes, the punishment hardly fits the crime anymore. Even the U.S. Sentencing Commission (USSC) says the sentences are too much! Yet, judges keep sentencing child pornography defendants to decades in prison, even in non-production and non-contact offenses.
WHY ARE THE FEDERAL COURTS SO HARSH WITH CHILD PORN SENTENCING?
The problem starts with Congress. They’re the ones who make the laws that prosecutors enforce, and that federal judges must follow, when it comes to child pornography sentencing. One of the harshest child pornography laws enacted by Congress was the PROTECT Act, which mandated stricter punishments for child pornography offenses. Enacted on April 30, 2003, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act sharply increased the statutory penalties for child pornography offenses. It was also the first and only time that Congress directly changed the U.S. Sentencing Guidelines (USSG), and it was despite the USSC’s forceful argument that no evidence showed these changes were needed. In response to the USSC’s criticism, Congress also enacted a provision that forbids the USSC from undoing any of the changes Congress made to the child pornography guidelines.
When all of the enhancements that Congress added to the child pornography guidelines under USSG 2G.2.2 are added up, the sentencing range for nearly all non-production child pornography cases is always near — or even over — the statutory maximum for the offense. And because judges typically impose a sentence within the guidelines to avoid reversal if the government appeals, the decades-long sentences for first-time offenders are usually upheld. In my book, “Worse Than a Murderer: Doing Time as a Sex Offender,” I provide a full explanation of the problems the PROTECT Act has caused with the child pornography guidelines, and the changing attitudes of judges toward the senseless changes made by Congress.
BUT THEY WERE ONLY PICTURES!
Arguing that the child pornography images and videos found on your computer were “only pictures” won’t work. It might even make things worse. Prosecutors and victim advocacy groups have been pushing to change the term “child pornography” to “child sexual abuse material.” They say the pictures are really evidence of a crime — the sexual abuse of a minor — and not merely harmless pictures. Judges have also reasoned that if the demand for child pornography went away then the child pornography producers would stop. Those are some strong arguments.
Instead, a better way to argue for a lesser sentence in a child pornography case is to convince the court that the harsh punishment isn’t necessary. This is called “mitigation” and involves several methods, some better than others, and each case is unique. The first thing you and your lawyer should do is hire an expert to review the evidence. Sometimes child pornography isn’t child porn at all. The government might lump together many pictures without analyzing all of them, usually just based on the file names. File sharing program users may have named the pictures after a popular child pornography series, such as the “Vicky” series, in order to get people to download them. But the pictures may not have anything to do with the Vicky child pornography series at all. And a nude child doesn’t automatically mean “child pornography.” A defense expert will help sort this out.
Another method of mitigating your sentencing exposure if by getting a psychological evaluation and doing some pre-trial sex offender counseling. A sex offender treatment specialist may find that you are a low risk for recidivism (i.e., at risk of committing another sex offense), and a shorter sentence coupled with treatment would be a better option for you. Judges make decisions based on evidence, and a psychological evaluation is strong evidence that could sway the judge’s opinion. In “Worse Than a Murderer: Doing Time as a Sex Offender,” I go into detail on how these psychological evaluations work and what to expect.
I’M NOT A MONSTER!
No, you’re not a monster. Child pornography offenders are usually respectable citizens and rarely fit the mold of the stereotypical “creepy” guy in the white van by the school. Those convicted of child pornography crimes include firemen, lawyers, doctors, pastors, and even the cops who are tasked with preventing such crimes. But if you listen to the prosecutor in your case, you’re the worst dirt bag in the world and you deserve to be locked up forever. Remember, the prosecutor’s job is to make you look like a monster, because it’s easier to severely punish someone we see as less than human and unlike us.
This is where all those people who still think you’re a good guy need to step up and write letters to the judge, asking for mercy on you. These “good-guy” letters can shift the judge’s opinion of you. All the judge has to go by without hearing from people on your side is the presentence report (PSI), which outlines all your bad acts and tells the judge why you need a long prison sentence. These supporters also need to show up in court whenever you have a hearing to show that you have lots of support, despite your offense. The judge will even let some of them speak at the sentencing hearing. But not everyone gets to speak. A supportive employer will carry more weight than your own mother. Think about that.
YOU GET TO SPEAK IN COURT
Before the court imposes a sentence on you in a child pornography case, you get to say something to try and convince the judge to go easy. This is called “allocution” and it’s your “right to be heard.” The point of allocution is to take responsibility for your offense and to show remorse. It’s a difficult thing to do, even for experienced public speakers. You must work closely with your lawyer on allocution, if you choose to speak (you don’t have to). Make it count, because you don’t get a do-over. I provide some examples of allocution techniques that have worked, and some that have backfired, in my book Insider’s Guide: Doing Time as a Sex Offender.