Child Pornography Sentencing

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There’s a tremendous debate going on over child pornography sentencing in the federal courts. In a number of high-profile cases, judges have imposed sentences well below what the federal sentencing guidelines recommend. An Assistant Federal Public Defender published an influential paper arguing that the guidelines for such cases have been increased over time for reasons that are more political than criminological. The ABA Journal published a long article that was plainly sympathetic to the view that child pornography sentences are too long in many cases. The federal Department of Justice wrote a scathing response to the article, which will turn the stomach of anyone who reads it. The most influential sentencing expert in the country has focused on the issue. Although emphasizing federal practice, much of this material will be of interest to lawyers who practice in state court, as well.

After reading the above items, I looked back at North Carolina’s laws regarding child pornography. Broadly speaking, the law criminalizes production (first-degree sexual exploitation of a minor, G.S. 14-190.16), distribution (second-degree, G.S. 14-190.17), and possession (third-degree, G.S. 14-190.18) of such material. I’ll leave aside the production offense, since that’s by far the least often charged. The distribution offense is a Class E felony, while possession is a Class H. As far as I can tell, most child pornography defendants have no criminal record, meaning that presumptive sentence for distribution — typically, sharing images via internet — is in the two-year range, with probation available. The presumptive sentence for possession is in the 6 month range, with even unsupervised probation available. Compare that to the average sentence in a federal possession-or-distribution child pornography case, which is about eight years active, and rising, with many cases involving sentences of fifteen years or more.

It’s a tremendous disparity. Of course, that doesn’t mean that state law is too lenient, or that federal law is too harsh. It just shows that they’re very, very different. One consequence of that is that there’s a powerful incentive for forum-shopping by officers deciding where to take their cases, prosecutors deciding whether to seek federal adoption of a case, and defense lawyers.

All comments about child pornography sentencing are welcome, of course, but I’d be particularly interested to hear from folks who know how such cases are handled in other states, and from folks who know of cases in which the state/federal disparity was an issue — for example, where a defendant pled guilty in state court to avoid the possibility of federal prosecution.

12 comments on “Child Pornography Sentencing

  1. When you said that response was stomach turning, you weren’t kidding. I read a page and then scurried away as fast as possible!

  2. Ms. Gelber’s response accentuates the Government’s emotional perspective on this topic. The physical crime is an emotional subject that defies morality. However, the Government’s reactive legislation, addressing the possession of internet based images is (as depicted in Ms. Gelber’s response) emotional. As a society we rely on our governments to wade through the emotion and assert logic in to legislation. When our Government is incapable of providing logical legislation, the result is a complete break down of our judicial system. Groups of people are singled out. The Government acts as a liaison to public scrutiny in lieu of serving justice. This is not how our legal system is designed to work. Legislators must have the capacity to weigh the crime of viewing images, via the internet, against the reality of destroying lives/families/relationships of those to be imprisoned for the crime. Newton’s third law of physics should apply here; ‘To every action there is an equal and opposite reaction…’ . The Government has made its reactive, emotional based legislation on the “action”. The “reaction” which entails the destruction families, careers, relationships, autonomy, lives, etc. is not up for consideration. The Federal guidelines defy all sense of logic in removing a harmless, productive father, husband, son from society for viewing internet images. The Government’s primary directive should be to ensure that these individuals are, in fact, harmless in lieu of focusing on absolute incarceration.

  3. Please contact me. My brother is facing these charges in FLorida. We have been given very little hope.

    • My son is facing these charges in North Carolina and the amount of jail time for viewing is ridiculous! We don’t know what to do and need some help.Anyone know where we can find it?

      • My son is facing this too. I pray for you and your family.

  4. A case in California dealt with the “multiple” counts for one offense. It was decided there was no basis for more than one count when one offense was committed. Federal has the offense and “enhancements” to deal with sentencing. Most states do not, so resort to “multiple” charges on one offense. Read this case and see what you think.

    filed 10/24/07
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (Sacramento)
    —-
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    TIMOTHY DONALD HERTZIG,
    Defendant and Appellant.
    C053674
    (Super. Ct. No.
    05F08338)

    excerpt:
    “B. Multiple Counts of Possession
    Analogizing to the possession of several baggies of
    marijuana, defendant persuasively argues that his possession of
    30 video images on the laptop computer constituted but a single
    violation of section 311.11. He was charged with and convicted
    of 10 separate counts. The Attorney General justifies the
    multiple counts based on the separate existence of each
    pornographic video and the fact that different child victims
    appeared in the videos. The Attorney General concludes that
    “because of the nature of the child pornography, and the
    30 separate images involved, the charging of ten violations of
    Penal Code section 311.11, subdivision (a) did not constitute an
    impermissible splitting of charges.” We disagree.”

    • My daughter is a victim and her abuser took pictures of the acts he committed. But was not charged with production. Only second and 3rd degree exploitation. He was also caught with hundreds of videos and images of child pornography. I’m terrified that he will get off with just a few years of confinement and the idea of that turns my stomach. The law better do something or the people will have to

  5. I just read the 2 laws since the 3rd says it ways repealed, so how is the child in fayetteville being charged for sexting? How could a group of legislators be so ignorant as to not allow some exemption if both parties are minors. I cannot believe the story on WRAL, one that we would waste any tax payers dollars to charge and attempt to prosecute minors for sexting, and two that anyone is ignorant enough to believe that it does not happen with the technology available to kids these days.

  6. Ok. My son lives in North Carolina. He recently received a smartphone for his birthday. My son is 14 years old. He searched for pornographic materials of kids his own age. The F.B.I. responded, shut off his phone and is trying to prosecute.

    They have mentioned that he may be labeled a pedophile.

    How can this be when he is a child himself???

  7. My friend J, as well as my brother, trey, may face criminal punishment because of their actions in distributing sexual materials of young women to their friends. This was all in efforts to “expose” the girl in the videos. Please help I do not want my friends to go to prisonw

  8. My son who is 37 and has never been charged for anything, worked hard all his life, lives by himself, keeps to himself, has found himself in this position and has been charged by the FBI. He has mental/emotional issues and will never survive imprisonment. He has lived with this deep dark secret of viewing and no one knew. He has never ever taken any computer classes and had no idea whatsoever about the “cyber” stuff never being deleted. He needs mental health help, not bars, He and I are the only family each of us has. I depend on him to be my caregiver in the immediate future. I am on disability and there is no money. Can anyone help him? Who is going to arrest the people actually doing the damage to these children? HELP!!! HELP! We have both been humbled to our knees!!!! HELP!!! Judy

  9. […] I’ve blogged previously about some of the sentencing issues in child pornography cases. An interesting issue that has been […]

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