U.S. Sentencing Commission Recommends Major Changes to Penalties for Child Pornography

March 5, 2013 by David S. Seltzer

Because I regularly defend clients accused of serious child pornography crimes, I was excited to see that the U.S. Sentencing Commission has come out with an important new recommendation for how these crimes should be sentenced. Its 468-page report has a host of recommendations to Congress for how child pornography sentencing could be changed to make sentences more consistent, distinguish between dangerous and non-dangerous offenders, and reduce unnecessarily severe sentences. Perhaps most interestingly for criminal defense attorneys like me, the commission recommended reducing the statutory mandatory minimum for receipt and possession of child pornography.

The Sentencing Commission’s study grew out of an increasing judicial recognition that the law doesn’t adequately address how child pornography crimes are carried out. As the Associated Press reported Feb. 27, 84 percent of sentences for producers of child pornography were within guidelines range in 2004, the year before the U.S. Supreme Court ruled that the Sentencing Guidelines are only advisory. In 2011, only half the sentences for the same crime were within the Guidelines range. This suggests that some federal judges are uncomfortable with the Guidelines range, and indeed, some have directly said they are too harsh. The Sentencing Commission suggested that Congress address this by aligning sentences for the crimes of receipt and possession, consider lifting the mandatory minimum for receipt, and revise the Guidelines as they relate to collection of child pornography.

Another major point made in the Commission’s report is that the Guidelines should better distinguish between offenders with different levels of dangerousness to society. In offenses that are not production of child pornography, the report says, the Guidelines should be revised to account for whether the offender has ever directly harmed a child, because current enhancements don’t always take into account known past sex offenses. It also says the current Guideline calling for a sentence enhancement for 10 or more images (a graduated table whose highest enhancement is for more than 600 images) results in overly severe sentences sometimes, and calls for number-of-images enhancements that reflect how offenders actually operate. Similarly, it calls for discarding the enhancement for using a computer, and replacing it with enhancements for involvement in an online child pornography community.

There’s much more to this exciting new report, and as a cyber crime defense lawyer, I’m looking forward to delving into it in the coming weeks. For people who may be facing these charges, and their loved ones, it’s important to realize that the Sentencing Commission has only limited power to implement the changes it calls for. While the Commission is free to change guidelines it made, only Congress can change laws created by Congress. As a result, the new recommendations won’t be made a reality unless Congress agrees to them. And unfortunately, Congress has a history of wanting to look tough on child pornography offenders—indeed, that’s what created the sentencing problems the Commission is trying to address. I hope the current Congress takes the Commission’s recommendations to heart.

Led by David Seltzer, an experienced former cyber crime prosecutor, Seltzer Law, P.A., represents clients across the United States who are accused of serious crimes involving computers, pornography and the Internet. To tell us about your case and discuss how we can help, call today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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