Have You Been Charged With Child Pornography Offenses or Are Under Investigation?

Possessing, receiving, and trafficking child pornography are serious federal crimes. As the U.S. Supreme Court wrote 30 year ago, “The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children … [T]he materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation…”

Penalties for child pornography offenses have skyrocketed in recent years. Congress has increased statutory penalties and issued directives to the U.S. Sentencing Commission to increase the guideline sentences. The result? In 1997, child pornography offenders received a mean sentence of 20.59 months. In 2010, the mean sentence grew to 118 months. This change represents a 500 percent increase in the mean sentence imposed for this class of offenders in just 14 years.

The rapid increase in sentence length, driven mostly by Congress and not empirical evidence, has led judges to depart from the guidelines at an increasing rate. Some judges have also expressed concern that not all offenders are equally culpable and therefore do not deserve the harsh one-size-fits-all penalties that usually apply.

Child pornography: An introduction to the offenses and the sentences

Child pornography is defined by federal statute as any visual depiction, including any photograph, film, video, picture,or computer or computer-generated image or picture,whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where:

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer- generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. A minor is anyone under the age of 18.

Various acts relating to the distribution, transportation, importation, receipt and possession of child pornography are prohibited by federal law. Many of these offenses carry mandatory minimum sentences. Others, including simple possession of child pornography, do not.

Receipt v. possession: What’s the difference and why does it matter?

Simple possession of child pornography does not carry a mandatory minimum for first-time offenders; however, receipt of child pornography does. Given that everyone who possesses child pornography (aside from those who produced it) received it in some fashion, and because conviction for receipt of child pornography triggers a mandatory minimum and possession does not, prosecutors have vast discretion in what to charge a defendant. According to the U.S. Sentencing Commission, most federal prosecutors recently interviewed in 13 judicial districts charge defendants with receiving child pornography, but the Commission did identify “some inconsistencies in charging practices and plea negotiations relating to child pornography.” For example, some prosecutors will drop the receipt charge and forego the mandatory minimum if the defendant agrees to plead guilty to possessing child pornography.

How many people are sentenced for child pornography and for how long?

In 2010, just over 50 percent of federal child pornography offenders were convicted of offenses that carried a mandatory minimum sentence. The vast majority of them were ultimately subject to the mandatory sentence; only 4.3 percent received a departure from the mandatory sentence due to their assistance to the government in the investigation or prosecution of other offenses.

Defendants subject to mandatory minimums at sentencing received the longest sentences – 132 months compared to 121 months for defendants who received relief from the mandatory sentence, and 54 months for those convicted of an offense not carrying a mandatory minimum.

Even first-time offenders who do not receive a mandatory minimum can receive “substantially identical sentences as hardcore offenders.” In addition to increasing the base offense level, enhancements within the guidelines are frequently applied and can significantly increase the sentence. For example, one guideline enhancement is triggered if the defendant used a computer to receive or possess the material. The saturation of computer technology assures that nearly all child pornography offenders sentenced under this section receive this enhancement. As a result, a possession offender can easily receive a sentence longer than someone who sexually abuses a child.

For more information please click here http://en.wikipedia.org/wiki/Child_pornography

Contact our office in Chester, New Jersey, right away to schedule a free consultation with William D. Ware, Esq., a New Jersey criminal defense lawyer, who is an expert in defending people who have been charged with child pornography offenses.