Sentencing Commission Report Exposes Problems With Pre-Internet Sentencing Scheme

March 6, 2013 by David S. Seltzer

The U.S. Sentencing Commission made big news in late February when it came out with recommendations for substantially changing the way child pornography crimes are sentenced in our country. There are many, many interesting things about this report, which makes recommendations that, for the most part, Congress must act on. Today, I’d like to focus on an important inadequacy the Commission identified: the fact that the child porn laws were, by and large, written in a pre-Internet world but are being applied in a society where the Internet is ubiquitous. This has implications for the crimes themselves as well as several sentence enhancements. And as the Commission reported, the pre-Internet sentencing scheme means that some offenders face penalties far too harsh for the circumstances, while others may face penalties that don’t adequately reflect the seriousness of their actions.

Child pornography laws were first made before the rise of the Internet. (In fact, possession of child pornography was not a federal crime until the 1990s.) Prior to widespread Internet access, a DOJ report says, many of the people who possessed child pornography were the producers of the child pornography—and more images meant they had produced much more of it. Those who were not the producers had generally paid for it, meaning they were directly paying for children to be sexually exploited. Not surprisingly, they bought only what they truly wanted. And distributing it was not easy because it had to be in person or via mail, both of which could be risky. The number of people prosecuted for child pornography crimes was much smaller, possibly because there were actually fewer or maybe because it was harder to get caught.

However, with the rise of the Internet, the characteristics of child porn offenses have changed considerably. All images are now easy to replicate and send at the push of a button, traveling between servers without any humans handling a package. As a result, it’s easier to get and share child porn, and this has given rise to huge collections. In fact, some offenders collect images of a type they don’t prefer, so they can barter them with other collectors. Though exact numbers are hard to come by because it’s a crime, evidence exists that of those who collect, only a minority have actually committed a sex crime against a child. They rarely pay for child porn because they don’t have to. In addition, online child pornography sharing communities exist, and members often encourage one another to commit new crimes against children in order to make and share child porn.

All of this means that the original, pre-Internet sentence enhancements for child pornography crimes don’t make sense in a wired world. The Sentencing Commission thus suggested modifications that would ease overly harsh sentences for some offenders and lengthen sentences for others. In addition to recommending that Congress get rid of the sentence enhancement for using a computer—which is applied in virtually every crime—the recommendations suggest a more thoughtful approach to enhancements for collections, taking into account the kind of images and how long the offender has collected them. It also recommends adding enhancements for degree of involvement in an online child porn community, which didn’t exist when the first laws were written. If adopted, this could substantially change criminal defense law affecting people accused of child porn offenses.

If you are accused of a child pornography crime or another serious sex offense, call Seltzer Law, P.A., right away. Based in downtown Miami, we represent defendants across Florida and cyber crime defendants all over the United States. For a free, confidential consultation, send us a message online or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Conviction Upheld For Defendant Who Didn’t Realize Transporting Child Porn Is Illegal – U.S. v. Dean

Eleventh Circuit Denies Sentence Reduction Request Based on Crack Guidelines Change – U.S. v. Berry

Defendant Who Filmed Kids Showering Not Entitled to Downward Departure From CP Sentence – U.S. v. Klug