2020 Child Pornography Sentencing Statistics
The United States Sentencing Commission provides an annual update on offender characteristics for specific offenses. The information includes sentencing and demographic information. In 2021, the Sentencing Commission released an overview for child pornography offenders charged and sentenced in federal courts throughout the country. The data was compiled for the 2020 fiscal year.
This post will lay out this data and point to some areas of interest. These “Quick Fact” releases are useful tools for defense attorneys. The information provides insight into sentencing trends over a span of years. These trends coupled with the JSIN data can assist attorneys in formulating arguments for leniency.
Child Pornography Trends
In fiscal year 2020, 1,023 child pornography convictions were reported to the Sentencing Commission. This number shows a marked decrease in child pornography offenses over the last 5 years. In 2016, the Sentencing Commission reported over 1,500 child pornography cases in the United States. That number has dropped each following year resulting in a 36% drop in child pornography convictions from 2016-2020.
The release does not show a cause for the drop in case numbers. However, there are a few things likely at work. First, there might be fewer people committing child pornography offenses. Ten years ago, many child pornography defendants believed their use of VPN networks or peer to peer platforms could mask their inquiries into child pornography. Today, it is well known that any person that accesses child pornography through the internet is at serious risk of prosecution. It is possible that less people are willing to take the risk.
Second, the drop in case numbers could be the state court’s picking up the slack. Child pornography is criminalized in both the state and federal systems, and both entities maintain jurisdiction over cases where the internet or mail is used to facilitate the crime. As a general rule, the federal and state government’s do not pursue prosecution simultaneously. If the federal government picks up the case, the state district attorneys will stall their prosecution. If the state obtains a conviction, the federal government will not pursue additional charges. This creates a zero-sum game where an increase in state prosecutions will result in a decrease in federal offenders under the Sentencing Commission’s statistics.
Mandatory Minimums
The United States Penal Code incorporates various mandatory minimum punishments for child pornography offenses. The existence of a mandatory minimum is dictated by the section of 18 U.S.C. § 2252 that is implicated in the conviction. Simple possession of child pornography has no mandatory minimum and a maximum of 10 years imprisonment. If a defendant is convicted of simple possession, and has a prior conviction for a sex offense, the range of punishment is 10-20 years. Receipt, distribution and promotion of child pornography carry 5-year mandatory minimums and a maximum of 20 years imprisonment. If a defendant is convicted of receipt, distribution or promotion, and has a prior conviction for a sex offense, the range of punishment jumps to 15-40 years.
In 2020, the following breaks down the mandatory minimums associated with child pornography sentencing:
No Mandatory Minimum (MM): 35.8% of cases
Five Year MM: 49.7%
Ten Year MM: 9.3%
Fifteen Year MM: 5.2%
Demographic Background for Child Pornography Offenders
The “Quick Facts” release lays out the demographic data for those convicted of child pornography offenses. The following will outline the major statistics:
Gender
99.7% of offenders were male
Race/Ethnicity
81.3% White
12.2% Hispanic
4% Black
2.5% Other Races
Age
The average age of a child pornography offender was 42
Criminal History Categories
72.9% of offenders had no or very little criminal history (Category I)
9% in Category II
11.5% in Category III
3.9% in Category IV
1.8% in Category V
.9% in Category VI
The demographic information paints a distinct picture of the prototypical child pornography offender. A large majority of child pornography offenders are middle-aged, white males. Most of the offenders have no or very little criminal history.
Jurisdictions with Most Child Pornography Prosecutions
The release lists the top jurisdictions for child pornography prosecutions. Those jurisdictions are:
Western District of Missouri 42 cases
Western District of New York 33 cases
Middle District of Florida 31 cases
Southern District of Texas 31 cases
Western District of Texas 30 cases
Eastern District of Virginia 30 cases
Punishment Statistics
99.3% of child pornography offenders received imprisonment. The average sentence was 102 months in custody. The average sentence for those convicted of distributing child pornography was 133 months. The average sentence for receiving child pornography was 95 months. Both these charges carry a mandatory minimum sentence of 60 months. The average sentence for offenders convicted of simple possession of child pornography was 74 months. Possession has not mandatory minimum.
Sentences and the Guideline Ranges
For all child pornography offenses, the minimum guideline sentence averaged 120 months. Assuming most of these offenders have minimal criminal history, the average offense level was 30. Our experience aligns with these numbers. Most of our past clients end with a offense level around 30 regardless of the statute of conviction. A more thorough example of this reoccurring offense level, and the accompanying aggravating factors, can be found in a prior post here.
30.6% of all sentences fell within the recommended guideline range. 60.8% of sentences received a variance from the recommended range. 96% of the variances resulted in shorter terms of imprisonment (downward variance). Only 4% of the variances resulted in a higher sentence than recommended in the guideline manual (upward variance).
In a prior post, we reviewed the frequency of downward variances through the Sentencing Commission’s JSIN system. The final statistics released in this report support the individual case data from JSIN – the district courts are routinely leaving the guideline range down when sentencing defendants convicted of child pornography related offenses.
The Takeaway from this Report
The JSIN system, and the quick facts report, lead to the undeniable conclusion that most district court judges believe the guidelines overstate the seriousness of child pornography offenses. Congress, and the Sentencing Commission, have been adding aggravating factors to § 2G2.2 with impressive frequency over the last twenty years. These changes have resulted in harsher guideline recommendations, and ultimately, harsher final sentences (the average sentence for a child pornography offense in 1997 was 20 months. Today, the average sentence is over 100 months, a 5X increase in length of imprisonment).
This huge increase in sentence length considers the downward variances present in most of these cases. If the district courts followed the guideline recommendations, it is likely the average sentence would be 20-30% greater.
Child pornography attorneys need to understand the trends in sentencing to effectively represent their clients. These trends not only give insight into how sentencing judges view the guideline range, but they give life to an argument under the sentencing disparity prong of § 3553(a).