Congress Increases Penalties for Child P*rn

Federal judges have been complaining for a long time that our child p*rn penalties are too high. In 2010, judges departed below the sentencing guidelines or granted downward variances in 43% of cases. (For other crimes, the average departure rate was 18%.)

So what does Congress do? Yesterday, the Congress that agrees on nothing, agreed on increasing child p*rn penalties. The statutory maximum will be 20 intstead of 10 years in cases involving pre-pubescent children or those under age 12. The bill, already passed by the House, passed the Senate yesterday on a voice vote and will now go to President Obama for signing. Here's the text of the bill that passed yesterday. [More...]

Congress held a hearing on the current penalties in February. Even the Department of Justice had complaints. (Transcript here.)

Why are the guidelines so high? Because instead of being set by Sentencing Commission policy, which uses a systematic, empirical approach, the Commission has been forced to conform the guidelines to Congressional mandates directing it to implement various enhancements. The guidelines are irrationally high because they are set by Congressional fiat, not reason. And now, Congress has ensured sentences will be even higher.

As the Commission has explained, “experience and data showed that several existing enhancements (e.g.,use of a computer, material involving children under 12 years of age, number of images) in the applicable guideline, §2G2.2, apply in almost every case.” 2011 USSC report on mandatory minimum sentences, chapter 10, p, 55)

For an outline of the myriad of problems, as viewed by judges, prosecutors and defense lawyers, see the testimony of Federal Public Defender Deirdre D. von Dornum and U.S. Chief District Court Judge Casey Rogers (N.D. Fla.)

Here's how child p*rn sentencing works now. Here is the Sentencing Commissions 2009 report on the history of child p*orn sentencing guidelines.

According to a 2010 Sentencing Commission survey of federal district court judges (U.S. Sentencing Commission, Results of Survey of the United States District Judges January 2010 Through march 2010, response to Question 19), 70 percent believe the guideline range is too high for possession cases, and 69 percent believe the range is too high for receipt cases.

Among the problems the judges see, according to Chief Judge Rogers:

....the statutory directives increasing the base offense levels and adding large level enhancements have been imposed without supporting empirical data correlating them to the harm caused by a possession or receipt offender or justifying the amount of levels added for a particular offense, thereby creating a concern over disproportionality. Also, because the congressional directives and amendments bypassed the Commission’s traditional role of engaging in empirical study, judges are concerned that the incremental increases accompanying the specific offense characteristics are not reliable and thus
are incapable of yielding results consistent with the original goals of sentencing reform as well as the Section 3553(a) factors in the ordinary case.

How it works now, according to Chief Judge Rogers:

Applying Section 2G2.2 to the typical first-time offender with no criminal history
demonstrates how quickly the offense characteristics ratchet up the sentencing range from the baseoffense level. A typical first-time possession offender with minimal criminal history begins at a level 18. Assuming he possessed child pornography involving a prepubescent minor, add 2 levels (bringing the offense level to level 20); the material portrays sadistic, masochistic or violent conduct, add 4 levels (to level 24); he used a computer to download the material, add 2 levels (to 26); and he possessed some short videos, easily exceeding 600 images, add 5 levels (bringing the total offense level to level 31).

Level 31 for an offender in Criminal History Category I produces a range of 108 - 135 months, which actually exceeds the 120-month statutory maximum at the high end. Under this scenario, for offenders with a Criminal History Category of II or greater, the guidelines sentencing range would exceed the statutory maximum.

Congress' answer: Increase the statutory maximum.

Sex offenders are among the most marginalized members of society. No one wants to stick up for them. But today it's child p*rn, tomorrow it could be any other category of offenders Congress deems it politically profitable to attack.

(Please use asterisks in comments using the word p*rn. It attracts spammers and site blocking software like crazy.)

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  • Display: Sort:
    Done Lots of Work in This Field (5.00 / 2) (#3)
    by No Blood for Hubris on Tue Nov 27, 2012 at 09:06:10 PM EST
    Don't have a problem with these penalties.  Just sayin'.

    What kind of work? (5.00 / 2) (#4)
    by womanwarrior on Tue Nov 27, 2012 at 09:51:21 PM EST
    How many young men with aspergers who have no social connections and don't really get it have you worked with?  Every worked with somebody who didn't download stuff but it was on his computer anyway?  And he went to jail and got raped?  And his life as he knew it is over? How about the 72 year old guy who looked at something 3 years ago?  No sex acts?  Do you need him in a federal prison where he is too far away to be visited for 2 years?  And his 72 year old wife who doesn't drive is left alone, without his social security check?  

    Don't get me wrong, I think child porn is awful.  But we are not solving the problem in this way.  We are getting low hanging fruit and treating them totally harshly in an unnecessary way.  

    Now the people who do things to children?  You won't see me making such arguments.  But looking at a picture that was made years ago?  And the child would never know until the FBI informs her again and again?  

    I would like to talk about a sensible way to deal with this, instead of the witch hunts and the sex offender lists on the internet for life, including the Romeo and Juliet cases?  


    My problems with this stuff (none / 0) (#1)
    by Slayersrezo on Tue Nov 27, 2012 at 08:08:16 PM EST
    1. Like statutory rape is a "strict liability" crime. Picture is  foreign and looks over 18 but is actually 16 (legal there, illegal here) -tough stuff, sonny boy or girly gal, you are probably going to prison. Or at least having something bad on your record and being humiliated in your local paper, if they let you plea. Then all your neighbors can look at you and wonder if you should be allowed near their 3 year olds.
    2. Treats images possessed the same as if they are images produced. Doesn't even "grandfather" previously legal images in. So that old Penthouse with that 16 year old (forgot her name) or that old nude pic of 12 year old Brooke Shields...better hide and/or burn them and don't accidentally get any of those pics in your browser cache! Thoughtcrime!
    3. Treats DRAWINGS and other artwork the same as photographs. Witness freaking manga and other comics prosecution for child p*nography.
    4. In some cases you can go to jail longer for images or movies of "child po*n" involving mid teens or above then you would if you downright raped or molested them.
    5. Did I mention you can watch videos of 15 year olds being stoned to death on Youtube, but see the uncovered breast of one of them on the beach in a video even incidentally, and the police can be called.
    6. Taking pictures of small children in a tub is now hazardous to your health no matter how cute they look with that rubber ducky. Groin/genitals covered with water and totally unseen or hinted at? Doesn't matter, you perve, you. Go straight to Child Protective Services, do not pass go, do not collect $200.

    Our child p*rn laws are a huge bundle of fear and hysteria and hatred and -ultimately - FAIL. They don't solve the problem, and by overcriminalizing so many things not only do they grab innocent and *arguably harmless people into the web of the law BUT due to diversion of resources they guarantee that some real abuse will be missed.

    I agree fully (none / 0) (#5)
    by Gisleson on Wed Nov 28, 2012 at 11:19:30 AM EST
    Here in Minnesota we just had a college football coach put through hell by a hyper-aggressive prosecutor when the coach went to have his camera worked on and the repair person looked through the photos and found nekkid pix of the coach's small children.

    The charges have finally been dropped, but only after the coach's family was subjected to enormous amounts of harsh public scrutiny. And they were dropped when others finally saw the pictures and could not detect any prurience in the pictures that got the prosecutor overly excited.

    Our pornography laws are obscene. The only cure is to legalize and regulate but that route makes it much too hard for pimps and pornographers to exploit minors so we just let criminals be in charge by keeping everything illegal.


    Sounds horrid (none / 0) (#7)
    by Slayersrezo on Wed Nov 28, 2012 at 08:50:09 PM EST
    Thanks for sharing this story, and the ending.
    I'm glad it worked out for him in the end, though it sounds like a harrowing experience, and I hope it has not ruined him financially.

    Well, I am guessing (none / 0) (#2)
    by womanwarrior on Tue Nov 27, 2012 at 08:58:18 PM EST
    No veto of this one.  Voice vote, so we don't know if anyone voted against? So brave. I think they are all afraid of what has been planted on their computers, but i have a paranoid side.  What a waste of money.  

    Alternative Phrases for This Material (none / 0) (#6)
    by msaroff on Wed Nov 28, 2012 at 11:28:16 AM EST
    A question I would typically use the phrase child p*r*0*n (without the asterisks, and that is a zero, not an "O").

    Would this be an acceptable alternative?

    it's too hard to tell the difference (none / 0) (#8)
    by Jeralyn on Wed Nov 28, 2012 at 11:14:21 PM EST
    between an o and an 0. Please use the asterisks, thanks. I know it sounds silly but it's an unbelievable headache to get blocked at law firms and businesses by censor blocking software (It happened once) and really time-consuming to delete the auto-spammers in other countries who register via robot and post spam. The spammers also make the site less pleasant for readers.