For decades, punishments for possessing child pornography in America have been widely criticized as being extremely harsh. As a result, the bipartisan United States Sentencing Commission amended federal sentencing guidelines, effective Nov. 1, 2016.
Established in 1985, the commission is an independent agency in the federal government’s judicial branch that develops national sentencing policies for federal courts.
Such sentencing guidelines are designed to give structure to sentencing so that similar offenders committing similar offenses get similar sentences.
Enhanced sentencing changes for child pornography crimes
One big change of the commission’s amended sentencing for child porn involves “enhanced” sentencing. That refers to situations when a sentence – or punishment – is raised on account of various aggravating factors.
The new sentencing guidelines lower the number or types of cases in which enhancement is applied. Under the new guidelines, enhancement (or increases) in child porn sentencing only applies, in the peer-to-peer context, when the defendant actually knew he was sharing or distributing child pornography.
Further, for an enhancement involving distribution for value, the defendant must have “agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other obscene material, preferential access to obscene material, or access to a child.”
Child porn possession, receipt or distribution?
With child pornography, three separate crimes can be involved (besides production). One is possession and one is receipt of child pornography. They are usually charged together. Another is distribution of such materials.
The amended sentencing guidelines apply primarily to distribution, namely whether the person unknowingly shared, or distributed, such materials.
Unknowing distribution of child pornography
Legal analysts say the reason for this amended language is because many persons have claimed that even though they had, in fact, downloaded images of child porn, they were not guilty of sharing such images, though it may have appeared they were.
Their argument was that the default settings on peer-to-peer (P2P) programs was to “share,” so they may have shared without taking affirmative or direct action to do so.
Some courts have rejected the argument that a person can unknowingly distribute child porn due to such a default share setting. But others have accepted it, agreeing that a person can unknowingly distribute if there is a default share setting. The amended sentencing guidelines align more closely with the latter argument, curbing application of enhanced sentencing.
The new guidelines provide that increased or enhanced sentencing only can be applied when the defendant actually knew he was sharing on a P2P program.
Many P2P programs, such as BitTorrent, default to sharing files. Thus, such sharing via peer-to-peer file-sharing programs including Ares, FrostWire, Limewire or BitTorrent would be excluded from harsher punishments – or enhanced sentencing – under the newly amended child porn sentencing guidelines, unless the government can show the defendant knew he was sharing.
Some file-sharing programs mandate sharing, while others – including BitTorrent – let users opt-in or out of sharing files.
Resistance to harsh child porn sentencing
Before the commission handed down its new child porn sentencing guidelines, some courts had shown a resistance to harsh child porn sentencing.
For instance, in New York federal court, U.S. District Judge Jack Weinstein sentenced a Brooklyn man who faced 10 years in prison for downloading child pornography to just five days in jail instead. The federal judge strongly criticized the punishment guidelines at the time for failing to distinguish between dangerous offenders and those posing little threat to society.
The judge said that removing the man from his family “will not further the interests of justice.”
The judge also said that sentencing guidelines at the time of the trial (before last fall’s amended guidelines) “do not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment.”
Earlier sentencing guidelines had held that the defendant, if convicted, could face a sentence of 6½ to 8 years in prison. Congress doubled federal sentencing ranges for possessing child porn in 2003. But in recent years, federal judges who resisted such severe sentencing guidelines handed down lesser sentences in nearly half of all cases.
The federal judge in the Brooklyn man’s case, while rebuking harsh sentencing guidelines then in effect, instead sentenced the man to a fine and seven years of court supervision, along with five days in jail. (The man already had served those five days in jail before making bail.)
Broad number of Americans exposed to child porn offenses
As the judge noted, the Internet has made child porn accessible to a much broader number of Americans who otherwise might never have been exposed to it, or exposed themselves to it. Also, those who “surf” the Web looking for legal adult pornography sometimes are inadvertently exposed to illegal online child porn in the process.
As a result, many law-abiding citizens with no criminal record have been subjected to public disgrace, lost careers, heavy fines and severe prison sentences for child porn.
However, with newly amended sentencing guidelines in place, judges are being advised to curb the application of enhanced punishment in some cases of child porn distribution.
Hire an experienced child porn defense lawyer
If you or a loved one have been unjustly accused of distributing child pornography and are concerned about harsh sentencing, rest assured that you can get an experienced child porn attorney in Houston criminal defense attorney Neal Davis.
Neal Davis was recently able to help a defendant reclaim his seized computers and avoid any charge of possessing child porn. Of course, every case is different and has its own unique facts. Let the Neal Davis Law Firm guide you in your defense against child porn laws, which remain severe even with amended sentencing guidelines.
Contact sex crime defense lawyer Neal Davis today for a legal review of your case.
Possession of child pornography: Texas criminal defense
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