Some of the most challenging cases for criminal defense attorneys to take on are cases involving possession of child pornography. As one might imagine, a person accused of possessing child pornography is not likely to garner much support or sympathy from a jury member. Oddly enough, the person in the court most likely to show mercy to such a client may just be the sentencing judge.
The Kingsport Times recently linked an article from the Associated Press regarding the continuing debate over how to properly sentence those persons convicted of violating the child pronography laws, which are primarily federally codified at 18 U.S.C. § 2252. The article claims that the U.S. Sentencing Commission plans to release a report at the end of the year that would propose changes to the sentencing guidelines used on defendants convicted of possessing or distributing child pornography. The reasons for the proposed sentencing changes lie primarily with the severity of the sentencing for child pornography possessors, which have resulted in offenders who distribute and possess child pornography receiving longer prison sentences than those who actually sexually molest or even rape a child.
Perhaps surprisingly, federal court judges may actually agree with proposals to reduce the punishment for such offenses. According to a 2010 survey of federal judges, 70% said the sentencing structures were too high for child pornography convictions. In practice, federal judges issued child pornography sentences that were lower than the sentencing guidelines 45% of the time in 2010. Yet even though the sentences were lower than the sentencing guidelines, the average sentence for child pornography was still higher than all other offenses except murder and kidnapping.
On the other side of the debate are prosecutors and advocates for the victims. As one victim stated, "[those who view or distribute child pornography] need to be taught how much pain they inflict and a greater term of imprisonment will teach them that, (and) will comfort victims seeking justice." A congressman showed dismay over the number of judges who are already issuing lower sentences. "I am concerned that the federal judiciary is failing to consider the severity of child pornography and its victims. This departure rate is disturbing and threatens the most vulnerable among us, our children."
In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former AUSA Linda Dale Hoffa criticized the approach by Congress. "The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote. "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."
Even with the Sentencing Commission's upcoming report and criticisms by judges, there are those who believe that Congress will most likely not act. As Professor Jelani Exum from the University Of Toledo College Of Law stated, "You don't have a built-in sympathy. Who's going to stand up and say, 'I'm fighting for child porn possessors [?]'" Former federal prosecutor Linda Hoffa shared Professor Exum's views. "If you vote against these harsher penalties, the sound bite is that you're protecting child pornographers, and that could be the end of somebody's career."