Judges Tell Sentencing Commission Penalties for Child Pornography Defendants Are Too Severe

September 16, 2009 by David S. Seltzer

As a Miami child pornography criminal defense attorney, I was happy to see a recent news item showing that defense lawyers like me are not the only ones concerned about the severe penalties mandated by our federal child pornography laws. According to a Sept. 10 article in the National Law Journal, federal judges testified before the U.S. Sentencing Commission last week that they believe sentences for child pornography possession have become too severe. The judges said people convicted of possession are frequently first-time offenders that are not threats to the community, and should not be sentenced in the same harsh way as those convicted of commercial manufacture or sales of child pornography.

The Sentencing Commission hears testimony from judges, attorneys, probation officers and others about federal sentencing practices. It heard the testimony on child pornography sentencing in Chicago, its fourth stop of seven in a nationwide tour. Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel he does not condone child pornography possession, but pointed out that someone who watched such a video once can now be punished more severely than someone convicted of raping a child repeatedly over several years. In fact, he said, the average sentence for child pornography possession in his district more than doubled between 2002 and 2007, from 50 months in prison to 109 months.

The panel also heard from the Chief Judge of the Seventh U.S. Circuit Court of Appeals, Frank Easterbrook, who presides over the federal appeals court for the area. He said he wonders if the sentencing guidelines don’t produce “unreasonable and unjustified disparities” when he sees sentences for child pornography possession that are more than 40 times the size of sentences for bank robbers. Another objection was raised by U.S. Attorney Patrick Fitzgerald for the Northern District of Illinois, the prosecutor behind the Rod Blagojevich and “Scooter” Libby cases. Thanks to a Supreme Court decision that left judges free to depart from mandatory minimums, Fitzgerald said, his prosecutors prefer to request very high sentences because they believe judges will reduce those sentences. “[I]t is plain as day there is a deep disconnect” between judges and prosecutors on these sentences, he said.

Unfortunately, the problem these witnesses were addressing is far from abstract. In my work as a Fort Lauderdale child pornography possession defense lawyer, I have seen firsthand that this overly severe sentencing devastates the lives those who are prosecuted, and the lives of their families. The average sentence cited in the article for Eastern Michigan is now just over nine years in prison, during which time the defendant cannot support a family, develop a career or be a parent to his or her children. That’s a terrible personal cost, as well as a financial cost to society -- and it doesn’t even address the additional costs of lifelong sex offender registration requirements or life as a convicted felon.

I do not believe that child pornography possession should go unpunished, of course -- but sentences like these can be disproportionate to the crime, particularly when the accused is a first-time offender without a commercial interest in the material. And as the judges pointed out, they are also disproportionate to the federal sentences for other crimes, including violent crimes like assault or sexual abuse of a minor. As an Orlando child pornography crimes defense attorney, I have thought this for quite a while -- but when well-respected judges and prosecutors say the same, I believe the case for strong action by the Sentencing Commission is clear.