Child Pornography Sentencing

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.