South Dakota Supreme Court Rules 100-Year Child Porn Sentence Is Unconstitutional

April 11, 2011 by David S. Seltzer

As a child pornography defense attorney, I was extremely interested to see a news item about a rare reversal of a sentence for a defendant accused of child pornography possession. The Associated Press reported April 7 that the South Dakota Supreme Court has struck down a 100-year sentence for Troy Bruce of Pierre. Bruce was convicted of possessing 55 videos of child pornography in December of 2009 and sentenced to 100 years in prison. The high court found this in violation of the Constitution’s guarantee against cruel and unusual punishment, noting that people accused of more serious crimes have received shorter sentences. Bruce must still be resentenced by a lower court.

According to the article, Bruce was originally arrested in 2008, when his ex-girlfriend notified police that she’d seen child pornography on his computer. A search uncovered child pornography videos on DVD. All 55 counts against him stemmed from videos stored on one disc. The judge sentenced him to the maximum of 10 years for each of 10 counts, with sentencing suspended for the remaining 45 counts. Under that sentence, the 49-year-old Bruce would have been eligible for parole in 23 years at the earliest. However, the South Dakota Supreme Court found this overly harsh compared to sentences for people accused of more direct sexual crimes against children, including producing child pornography and sexual assault of a child. There was no evidence that Bruce had ever done those things or planned to, the court noted. A concurrence noted that differences in sentencing in South Dakota for child pornography possession are “shocking,” with one defendant serving just 45 days in jail.

Late last year, I wrote about a South Dakota defense attorney who was acquitted of child pornography charges stemming from his work defending someone accused of criminal child porn possession. It might be tempting to conclude that South Dakota has a particularly unforgiving attitude toward child pornography crimes, but as a child porn defense lawyer, I can tell you that federal law and many other states are also disproportionately harsh on child pornography defendants. At the federal level, the U.S. Sentencing Commission has heard from numerous federal judges who believe the guidelines for possession are too harsh, with the average sentence ballooning from 15 months to 102 months over 12 years. As a cyber crime criminal defense attorney, I understand that this kind of harsh punishment stems from society’s revulsion about the acts depicted in child pornography. But I believe it’s more just to consider what the defendants actually did, not what they might want to do.

Seltzer Law, P.A. represents clients across the U.S. who are accused of all types of online crimes and technology crimes. If you’re facing this kind of charge, don’t hesitate to call us for a free, confidential case evaluation. You can reach us online or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).