Child Pornography: An Argument for Proportionality in Sentencing

The topic for today is child pornography, and more particularly, the federal crimes of possession, receipt and distribution of child pornography.  These crimes – arising as they do from the victimization of children for the sexual gratification of adults – are among those that understandably incite the strongest of emotional reactions. 

Even so, it is important to differentiate between those who create child pornography and those who receive and view it or share it with others.  The creation of child pornography is essentially a violent crime in which a person sexually assaults a child and records that assault in photographs or videos.  By contrast, the crimes of possession, receipt and distribution of child pornography are not violent crimes in and of themselves.  Oftentimes, the images that are being viewed and traded were created years or even decades before.  This is not to minimize in any way the emotional trauma that victims suffer knowing that these images are in circulation.  However, few would argue against punishing the crimes that resulted in the creation of the images – the violent sexual assault of children – significantly more harshly than the viewing or trading of the images years later. 

Federal prosecutors often argue that child pornography offenses are “gateway” crimes at the beginning of a trajectory that always leads to child sexual assault.  Others contend that most of those who commit child pornography offenses have also committed unreported contact offenses against children.  The reality appears to be quite different from this alarming picture, however.  The study upon which the government often relies to argue that most child pornography offenders have previously molested children has been criticized as deeply flawed.  In that study conducted by the federal Bureau of Prisons, inmates participating in a sexual offender program were asked to self-report prior contact offenses, but were threatened with removal from the program and return to the general prison population if they failed to “truthfully” self-report.  Independent researchers have criticized this coercive methodology as tending to lead to over-reporting of prior contact offenses by program participants.  Moreover, studies of recidivism among child pornography offenders suggest a contact sexual re-offense rate of approximately thirteen percent over a four or five year period.

The increase in child pornography prosecutions in the federal criminal justice system over the past decade has been quite extraordinary.  In my view, the growth rate is attributable to several interrelated factors.  First, child pornography is more accessible now than ever before due to its availability on the Internet.  When pornography was only available in physical form – on paper or VHS tapes for example – only those with a real predilection for sexually explicit materials involving children went to the trouble to acquire it.  It has been my experience in handling child pornography cases in the Internet age that most of my child porn clients do not have a clear preference for child pornography.  Rather, they enjoy pornography generally and child pornography is only one of any number of categories of pornography that they will view, collect or share. 

Something that was surprising to me when I began handling these cases is how easy child pornography is to find online.  Indeed, the ease of acquisition of child pornography, and the fact that it is often found alongside other types of perfectly legal pornography, often lull users either into believing that what they are viewing is legal or that the consequences of viewing it are less severe than they really are.  As a result and as psychologists recognize, there is a significant cohort of people who look at child pornography who would more appropriately be characterized as pornography addicts than as pedophiles. 

The availability of child pornography online and the concomitant increase in those who now have access to it is only one part of the explanation of why child pornography prosecutions have increased so dramatically.  A second factor is how easy they are to prosecute.  Although federal prosecutors have an ethical obligation to “do justice,” they are still evaluated based upon their “productivity,” which really means the numbers of indictments and lengthy sentences they obtain.  Child pornography offenses are easy to prosecute because the data trail is so simple to follow.  Federal agents can identify the IP addresses of those who access child pornography and then use their subpoena power to find the owners of those IP addresses.  Forensic analysis of a computer associated with an IP address that confirms the presence of child pornography makes the case easy for the prosecutor.  Because child pornography offenses are so emotionally fraught, prosecutors have little incentive to exercise their prosecutorial discretion in any way that benefits a child porn offender.

As is often the case, politics also play a role.  Candidates for national political office have long known that advocating for longer sentences generally – and for child pornography sentences specifically – is a vote-getter.  At the federal level, there is little concern for the cost of ever-increasing criminal sentences; the same is not true at the state level where balanced-budget amendments come into play.  Because of these political pressures, sentences for child pornography increasingly have been ratcheted upward such that now most federal child pornography offenders are subject to sentencing ranges that reach or exceed twenty years of imprisonment.  Parole has been abolished in the federal system, so a federal offender can expect to serve about 85% of his sentence after receiving credit for good behavior.  Because violent crimes are usually still prosecuted by the states, however, where sentences are generally lower and parole still exists, it would not be unusual for someone who had committed a contact offense against a child to serve a state sentence that was lower than that imposed for a federal child pornography offense.  Putting it bluntly, the guy who raped a child to make the porn could easily serve less time than the guy who looked at the pictures years later.  I have actually seen this occur in some of my own cases.

Proportionality is an important factor in ensuring the fairness of our criminal justice system.  In simplest terms, proportionality means that those who do worse things should get longer sentences.  Sentencing in child pornography cases often violates this fundamental principle.  Unfortunately, lowering sentences for child pornography offenders is political suicide.  Nonetheless, I hope that Congress will look at reducing sentences in these sorts of cases as part of its review of overcriminalization that I discussed in an earlier post.  In the meantime it is incumbent upon criminal defense lawyers to continue our zealous advocacy in these cases and to point out the flaws in the system to the courts.

NSA Domestic Monitoring and the Attorney-Client Privilege

A new development in the National Security Agency monitoring scandal has very serious implications for lawyers and their clients.  CNET is reporting that the NSA has told lawmakers that it does not need court authorization to listen to domestic telephone calls or apparently to read emails or text messages.  Jerrold Nadler, D-NY has disclosed that he learned in a briefing that any NSA analyst can make the decision to listen to any domestic call.

Obviously, the monitoring of citizens' telephone calls and email and text communications raises serious privacy concerns.  However on a professional level, as a federal criminal defense attorney whose entire practice involves litigation against the U.S. government, I am deeply disturbed that an analyst working for that same government can listen to my telephone conversations with clients and read my written electronic communications without any court or even supervisory oversight.  The risk is particularly acute for attorneys like me who sometimes handle cases involving allegations of terrorism or terrorism funding.

The attorney-client privilege protects communications between a lawyer and client and is supposed to be inviolate.  The privilege has deep roots in Anglo-American jurisprudence and the concept dates back hundreds of years.  The attorney-client privilege exists to encourage clients to make full disclosure to their lawyers.  The idea is that an attorney cannot effectively represent her client in the absence of complete information.

That any analyst in a U.S. government agency can monitor attorney-client communications at will means that going forward, attorneys will be forced to take steps to limit telephone conversations and electronic communications with their clients.  Attorney-client communications will need to take place in person and exchanges of data between attorneys and clients will need to be made by hand.  In this electronic age, this places an undue burden on attorneys and their clients.  Moreover, now that the NSA's monitoring program has been made public, I am concerned that the government may in some cases argue that the fact that attorneys and their clients engaged in electronic communications even though they knew about the existence of the monitoring program constitutes waiver of the attorney-client privilege as to those communications.

Some of these same concerns were raised in a case styled American Civil Liberties Union v. National Security Agency, et al.  In that case, journalists, attorneys and academics who had regular communications with contacts and clients overseas sued the NSA out of concern that their communications might be monitored under an NSA overseas surveillance program.  The Sixth Circuit Court of Appeals ordered the case to be dismissed on the ground that no plaintiff could prove that he had actually been monitored.  I anticipate that a similar challenge to the domestic monitoring program will soon be filed.

Overcriminalization - A New Congressional Task Force

A recent article by George Will published in the Washington Post shines a light on probably the most serious problem facing the federal criminal justice system: overcriminalization. Congress continues to legislate new federal crimes – now numbering at least 4,500 – with no end in sight. As Will points out, the proliferation of federal crimes and passage of mandatory minimum sentencing laws have increased incarceration rates and sentence lengths in this country to extraordinary levels. All that prosecution and incarceration costs money. Moreover, the expansion of regulatory offenses and concomitant dilution of the requirement that criminal conviction requires a “guilty mind” means that it is now eminently possible to commit a federal crime by accident. The newly created House Judiciary Committee’s Over-Criminalization Task Force House is a step in the right direction.

Do Lengthy Sentences Reflect Community Values?

Recently, while researching sentencing issues, I came across an excellent article written by a United States District Court Judge James S. Gwin and published in the Harvard Law and Policy Review. The premise of the article is that federal criminal sentences generally do not reflect community values. In short, sentences imposed by judges under the federal Sentencing Guidelines are, in most cases, far longer than “regular people” believe is appropriate.

The article begins with a discussion of the historical purposes of sentencing – retribution, rehabilitation, deterrence and incapacitation. In simple terms, we send people to prison for committing crimes to (1) punish them for what they have done; (2) “fix” them with treatment and/or education; (3) encourage them not to reoffend out of fear of more punishment; and (4) prevent them from committing crimes during the time they are locked up. At various times in our history, our criminal justice system has elevated one purpose over another, depending on politics and trends in criminal psychology.

Judge Gwin argues in his article that currently our criminal sentencing system elevates “retribution” over the other purposes – an emphasis Judge Gwin believes to be appropriate. According to Judge Gwin, if the primary purpose of sentencing is in fact retribution, i.e. punishment that is calibrated to reflect the seriousness of the crime and the criminal past of the offender, then sentences should reflect community values. Put another way, if sentences are significantly longer or shorter than the community collectively believes is appropriate for particular offenses and offenders, then the public loses faith in the legitimacy of the criminal justice system.

With that as a background, Judge Gwin describes a study conducted in his own district wherein, in twenty-two criminal cases in which juries returned guilty verdicts, each juror was asked to recommend a particular punishment in months for the convicted defendant. In each case, the juror recommendations were sealed and only opened after sentence had been imposed by the sentencing judge pursuant to the normal procedure and with due consideration given to the applicable Sentencing Guidelines range.

Remarkably, Judge Gwin’s study found that juror sentencing recommendations were significantly lower than the applicable Guidelines sentencing ranges. Overall, the median juror recommendation was only 19% of the median Guidelines range and only 36% of the bottom of the guidelines range. As an example of what that means in practical terms, for a median recommended Guidelines range of 100 months of incarceration, the sampled jurors would have recommended a sentence of only nineteen months. Judge Gwin concludes that sentences under the Sentencing Guidelines do not reflect community values regarding the appropriate punishment for most categories of crimes and offenders. He recommends that the United States Sentencing Commission sample juror attitudes regarding sentencing so as to bring the Sentencing Guidelines more in line with community values.

This article resonated strongly with me because it reflects what I have experienced – that is, that the average person is surprised at the length of federal criminal sentences. Over the years, I have found that non-lawyers are invariably shocked by the sentences that are imposed in federal cases when they learn the facts and the background of those cases. I have found that not only do most laypeople erroneously believe that federal criminal sentences are short, but most also believe that federal prisons are "country clubs."

Although, Judge Gwin’s proposal is thought-provoking, I doubt that the Sentencing Commission will follow his suggestion and sample juror attitudes. There is very little political will in this country for lowering sentences. Legislators in both parties find it much easier to garner votes with a “tough on crime” attitude than to give real consideration to reforming federal criminal sentencing. However, in today’s fiscal climate, a reduction in the length of federal criminal sentences could serve the dual salutary purposes of bringing sentences into line with community sentiment while also cutting costs.

Judge Gwin’s article can be found here:

"Juror Sentiment On Just Punishment: Do The Federal Sentencing Guidelines Reflect Community Values?"

In Defense of Criminal Defense

Welcome to my new criminal defense blog, InDefense. I am a federal criminal defense attorney in private solo practice and I have been so for the past twelve years. As a federal criminal defense and appellate attorney, I produce a great deal of written work product. I love that aspect of my practice, but I have often thought that it would be fun to write about interesting issues in criminal law, not as an advocate but as an observer and critic. That is the genesis of this blog.

Even though I am writing for myself, my hope is that current and prospective clients, colleagues, and maybe even the general public will find this blog informative and will come away with a better understanding of some of the issues facing criminal defense practitioners and their clients. I have found, as I have built my practice, that there are a lot of misconceptions about criminal defense and criminal defendants. I anticipate that many of those misconceptions will inspire future posts.

For the moment, let me state for the record that I love my work and cannot imagine doing anything else. Criminal defense lawyers safeguard the rule of law, and indeed the right to counsel in a criminal case is so important that it is enshrined in the Constitution. President John Adams once opined of his defense of British Soldiers in the Boston Massacre trials in 1770 that it was "one of the best Pieces of Service I ever rendered my Country." 'Nuff said.