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Federal Child Pornography Charges Carry Severe Minimum Mandatory Sentences
Even though judges have the authority to depart from the federal sentencing guidelines when sentencing those convicted of child pornography charges, many judges still use the guidelines and often impose the maximum penalties.

Recently, a 29-year-old man from Iron Mountain, Michigan, was sentenced to nearly 20 years in a federal prison for possession of child pornography. Erik Michael Smith pled guilty to receipt of child pornography last June. He told federal prosecutors that he had downloaded pornographic images from the Internet and then shared them with others he met in chat rooms through a peer-to-peer file sharing program.

Senior District Judge R. Allan Edgar sentenced Smith to 235 months in prison, a $100 special assessment and, upon completion of his prison term, lifetime supervised release. Smith also will be required to register as a sex offender in Michigan, or any other state he moves to after serving his sentence. Additionally, he will have to abide by any other restrictions that are imposed on him for being a registered sex offender, which may include residency and employment restrictions. For example, Michigan prohibits registered sex offenders from living within school safety zones.

The 235 month prison sentence was only five months shy of the maximum penalty available under the federal sentencing guidelines for receipt of child pornography.

Unequal Sentencing in Child Pornography Cases

Over the last 20 years, the penalties for child pornography crimes have become increasingly severe to the point that simple possession of child pornography — a crime that does not involve any sexual contact with a minor — may carry a 10 year prison sentence. Other child pornography charges, including distribution and receipt, carry between a five to 20 year sentences.

Even though the United States Supreme Court ruled in 2005 that the U.S. Sentencing Guidelines are meant only to be advisory, many judges across the country still stick rigorously to the guidelines when sentencing defendants for child pornography charges, as was seen in the Smith case.

Other judges, however, have been critical of the severity of the mandatory minimum sentences and have sentenced defendants well below the suggested guidelines. These judges have pointed out that the current sentencing guidelines for child pornography offenses are not based on empirical evidence or scientific findings, but on emotion and Congress’s reaction to societal fears. The end result has been vast disparities in sentencing, with any one defendant’s sentence depending greatly on where his or her trial is held and which judge oversees it.

Proponents of these harsh penalties argue that possession of the illicit images is not a victimless crime and that child pornographers create a market for child abuse. By punishing those caught viewing, downloading and sharing these images, it is believed that demand will be decreased and the market eventually will be shut down.

Another argument often used to justify severe prison sentences is that those found in possession of child pornography may simply not have been caught yet molesting a child, but that that does not mean they have not done so or will not do so in the future. In this way, the five to 20 year mandatory federal prison sentences for child pornography crimes have become a way to punish undetected acts of child molestation.

However, there is evidence which suggests that those who view child pornography and those who sexually abuse children are two entirely different classes of people and that one act does not lend itself to the other. In an article recently published in the Stanford Law and Policy Review, the author cites evidence that the majority of child pornography offenders fail to pose a substantial risk of contact offenses against children. Hamilton, Melissa, The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric? (October 8, 2010). Stanford Law & Policy Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1689507.

It will be an uphill battle to change the sentencing guidelines for child pornography offenses. No politician is likely to be willing to take a stance that can be viewed as weak on crime or failing to protect children. Unfortunately, until the public and Congress are willing to accept the fact that child pornography is a separate offense from child molestation, it is likely that the majority of courts will continue handing out severe sentences for these crimes.

Contact an Experienced Criminal Defense Attorney

Even though some judges have begun exercising more discretion in sentencing those convicted of child pornography crimes, the average sentence for someone convicted of possession of child pornography was still 109.6 months according to 2007 figures.

If you are being investigated for possession, distribution or another child pornography offense, it is important to get help from an experienced criminal defense attorney as soon as possible. Just being investigated for the crime can impart a lasting stigma and negatively affect your life.

For more information on defending against child pornography charges, contact a knowledgeable criminal defense attorney today.

Keywords: Child pornography, criminal, sentencing
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