Brian T. Hobson
Over the last 25 years, Congress has been diligent in reviewing and revising the Federal Sentencing Guidelines relating to sentences for those found guilty of child pornography cases. From 1987 to 2009, Congress revised the guidelines in this area nine times, and each revision resulted in longer sentences for those convicted of child pornography related cases. Research over the last 15 years shows that the guidelines are not only increasing the availability of harsher penalties, but that harsher penalties are being ordered in most child pornography cases. In 1997, the average sentence for a person convicted of a charge relating to child pornography was 20.59 months. By 2010, this average skyrocketed to 118 months. These longer sentences are accompanied by an increased focus from the federal government on child pornography cases. The number of federal cases prosecuted rose from under 50 per year in the 1990’s to 1,886 in the year 2010. This increased focus accompanied by harsher penalties has made allegations of child pornography a very serious offense for even first time offenders. This danger demands that those charged with a child pornography crime contact a competent child pornography lawyer as soon as the investigation starts. The federal government is serious about these cases, and defendants must follow suit to have a chance at a positive outcome.
The Current State of Child Pornography Punishment
Child pornography sentences often carry a statutory mandatory minimum sentence. This a threshold of incarceration that is required by statute upon conviction. If a conviction is obtained by the federal government for certain child pornography offenses, there is no choice but to at least serve the minimum sentence that is defined in the statute. There are cases in which a sentence can go below the mandatory minimum through a bargain with the government, but these are rare and most sentences will at least adhere to the minimum sentence. The following will lay out the sentencing structure for the two most common child pornography charges including their accompanying mandatory minimums.
1. Possession of Child Pornography
Possession of Child Pornography is defined under 18 U.S.C. § 2252. Possession of child pornography is defined in relevant part as knowingly possessing images or videos that contain a minor engaging in sexually explicit conduct. A minor is defined as any person that is under the age of eighteen. Sexually explicit conduct is defined as: 1) sexual intercourse, 2) masturbation, 3) bestiality, 4) sadistic abuse, or 5) exhibition of genitals in a sexual manner. The government must prove each element of the offense in order to obtain a conviction under § 2252.
For a first time offender, a conviction for possession of child pornography carries a sentence of 0-10 years in Federal custody. The statutory maximum for this offense is 10 years. There is no mandatory minimum associated with a first time offender that is charged with only possession of child pornography. Where a particular defendant will fall in the punishment range will depend on numerous factors including the facts of the offense, assistance to the government, and acceptance of responsibility.
If the defendant has a prior final conviction for a sex related offense in either state or federal court, the punishment range changes following a conviction for possession of child pornography. The punishment range for those previously convicted of a sex offense is 10-20 years in Federal custody. The mandatory minimum is 10 years. The statutory maximum is 20 years. Again the specific facts of your case will guide where a particular defendant will fall within the 10-20 year range.
2. Distribution or Possession with Intent to Distribute or Sell Child Pornography
Distribution of child pornography is defined in 18 U.S.C. § 2252A. The elements of this offense are that the defendant must knowingly mail, transport or ship child pornography using any means of interstate commerce. The use of computers is by far the most common route in which child pornography is transported in federal jurisdictions. This statute is often met when child pornography is e-mailed to a recipient, posted in a chatroom, or downloaded from the defendant’s computer through a peer to peer network. Of these, the peer to peer networks provide the most troubling area. If you are on a peer to peer network and another person, or the government, downloads an image or video containing child pornography from your computer you could meet all of the elements of the offense. The defendant need not actively send the images or videos; nor know who is obtaining the child pornography from his computer in order for the elements of the offense to be met. To obtain a conviction the government will have to prove each and every element of the offense beyond a reasonable doubt.
For a first time offender, the punishment range for distribution of child pornography is 5-20 years. The mandatory minimum for this offense is 5 years, and the statutory maximum is 20 years. If the defendant has a prior sex crime conviction, the punishment range jumps sharply. The punishment range for a repeat offender is 15-40 years. The mandatory minimum is 15 years and the statutory maximum is 40 years.
Distribution and Peer to Peer Networks
It is important to note that distribution is relevant to child pornography crimes in two separate areas. One is under § 2252A, where the criminal act of distribution of child pornography is defined. The other is in the sentencing guidelines. In Sentencing Guideline Manual § 2G2.2, a person charged with a child pornography related offense can receive a 2 to 5-level increase in the offense level if the judge finds that they distributed the material. Distribution is defined under the Guidelines Manual as “production, transportation, or possession with intent to distribute, relating to material that involves the sexual exploitation of a minor.” However, under § 2252A, the Courts have not used this broad definition, and state that an actual transfer must occur before distribution is appropriate under § 2252A. Put differently, possessing with an intent to distribute child pornography is not sufficient to meet the definition of distribution under § 2252A, while it is sufficient for the enhancement under the guidelines. In this section, we will be discussing distribution only as it relates to § 2252A. Distribution of child pornography and the sentencing guidelines will be discussed in depth in a subsequent post.
The disparity in punishment for possession versus distribution is stark. This disparity is what makes the peer to peer network arm of child pornography prosecutions the most dangerous area for defendants. A case that could have been worked out with minimal prison time for possession can quickly transform into a case that mandates at least 5 years in custody. The only difference in the case may be that the defendant downloaded a peer to peer network that allows others to download files from his computer. The defendant’s knowledge of the network’s capability in this regard, or that child pornography is made available to others on the network, is often enough for the government to be able to prove all of the elements of distribution under § 2252A.
Recently, the Federal Courts of Appeals have set out to define the mens rea that is required before a distribution conviction is appropriate. The question that they struggle with is what level of knowledge should have to be proven before a defendant on a peer to peer network has violated the distribution statute. Should a defendant have to know that logging into the peer to peer network opens his computer to downloading from others? Should they have to further know that the child pornography on their computers is one of the files that other members of the network may download? The cases in part two will highlight where some of the federal courts of appeals stand on this critical issue.